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ESSENTIAL READING FOR BARRISTERS

2ND J une - 31 st J uly 2009 TRINITY TERM ISSUE

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In the last three years, the debate was stoked by two full public consultations1 which canvassed views about media access to the family courts; opinion was strongly divided. Unsurprisingly, 100% of media representatives who responded to these consultations agreed with the proposition

that they should be admitted as of right; 72% of members of the public and 54% of voluntary sector (charities for children, adults or others) organisations who replied also apparently agreed. A significant percentage (up to 72%) of the judiciary responding expressed views against media access, as did 77% of the responses from local and devolved government and Non-Departmental STEPHEN COBB QC Public Bodies Family Law Specialist (NDPBs), and 78% of responses from legal practitioners or bodies representing them. p.28

A British Bill of Rights and Responsibilities It all looked so different in July 2007 - a new prime minister: a new approach. A green paper heralded the ascent of Gordon Brown by promising to make ‘the executive more accountable’. It even speculated that we might need ‘a concordat between the executive and Parliament or a written constitution’. Now, we have a further green paper, Rights and Responsibilities: developing our constitutional framework. The political territory occupied by proposals for a bill of rights - with or without additional duties or responsibilities - is getting crowded. Northern Ireland was promised one in the Good Friday Agreement and its Human Rights Commission finally came up with a draft last December. The UK Parliamentary Joint Committee on Human Rights took it upon itself to draft one last August. David Cameron has called for one over the last couple of years. We can now add the government’s proposals. Debate on the latter can be followed on its own website

(http://www.governance.justice.gov.uk/). This allows you to keep up with the debate on Twitter, webcasts, webchats and emailed discussion. Indications are, alas, that trade is slow. Only four people, for example, contributed to the thread on responsibilities during the whole month of April. Reasons for such low response to the Ministry’s big debate are not hard to find. Gordon Brown, with the saving of the economy on his mind, appears to have lost interest in the democratic project. Even if he had not, his cabinet are reportedly hostile to anything that might be interpreted as extending rights. The original proposal for a ‘British Bill of Rights and Responsibilities’ has fallen foul of a number of somewhat recalcitrant forces in devolved jurisdictions, notably the Scottish National Party, that see little to gain from linking themselves to such a Westminster initiative. Anyway, public attention is switching from Labour to the Tories. Finally, the latest green p.10 paper offers only a consultation without

price £3.00

ISSN 1468-926X

Where there is no publicity there is no justice? Jeremy Bentham, the Eighteenth Century jurist, philosopher and social reformer, believed that “…in the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice … Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial …”. These opinions have lain at the heart of the debate, conducted inside and outside of the family courts for many years, about the extent to which its processes should be exposed to public scrutiny.

E st . 1999

Features 3

Dangerous minds

6

Sentencing solutions

The ‘directing mind’ defence has survived the judgment in Ferguson but to escape liability, large companies will need to consider the relevant statute, argues Thom Dyke.

The unsustainable levels of people imprisoned in Britain today is indelibly linked with short-term sentencing. A significant proportion of prisoners housed in UK prisons are on sentences of one year or less, and it is the magistrates who primarily hand down sentences to this group By Roma Hooper, Director, Make Justice Work

18

Jackson: a ‘review for review’s sake’ or a ‘valiant effort’? On 8 May the attention of the legal world turned to the subject of civil litigation costs as Jackson LJ revealed the terms of reference of his year-long review of the matter in his preliminary report. By Bob Gordon, CEO, 1st Class legal

News p.20 Bar Council Welcomes Lord Justice Jacksons's PrelimIinary Report

p.21 Cherie Booth urges Manchester firms to nurture female talent

editor: nigel simmonds 0870 766 2715 email: info@barristermagazine.com publishers: media management corporation ltd publishing director: derek payne Design and Production: Alan Pritchard email: info@soinspire.me.uk Printed by: NewNorth, Milton Keynes


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03

Dangerous minds The ‘directing mind’ defence has survived the judgment in Ferguson but to escape liability, large companies will need to consider the relevant statute, argues Thom Dyke.

T

he Court of Appeal in

for whose acts the company would be

Corporate ego

Ferguson v British Gas

vicariously liable, or someone with sufficient

By rejecting the corporate liability argument

[2009]

46

seniority to be regarded as the ‘directing

raised by British Gas, has the Court of Appeal

sent a strong message

mind’ of the company. Furthermore it was

effectively neutered the requirement to bring

that it was not prepared

argued by counsel for British Gas, that as the

an action against a ‘directing mind’?

to accept any attempt

threats had been generated by an automatic

common law has traditionally been quick

to escape liability for criminal and tortious

computer system, Ms Ferguson should have

to allow civil claimants to recover against

acts by hiding behind what was termed by

known to not take them as seriously as if they

corporate bodies through the mechanism

Sedley LJ as ‘the privilege of incorporation’.

had been from an individual.

of vicarious liability.

EWCA

Civ

The decision provides a timely warning for

determining

criminal

The

When it comes to liability

however,

large organisations who rely on automated

The Court of Appeal had little sympathy with

courts have been required claimants to

systems to provide customer services, but

these arguments, and rejected the appeal in

jump through the hoop of the ‘identification

what effect will it have in practice for the law

a robustly worded judgement. In particular,

doctrine’.

of corporate criminal liability?

Sedley LJ noted the absurdity which would result

from

a

situation

whereby

large

The classic formulation of this principle

Facts

organisations could hide behind corporate

was laid down by Viscount Haldane LC

Ms Ferguson brought her claim against British

structures to defend their actions. ‘It would

in Lennard's Carrying Co Ltd v Asiatic

Gas under the Protection from Harassment

mean that the privilege of incorporation not

Petroleum Co Ltd [1915] AC 705:

Act 1997 in respect of their threatening

only shielded its shareholders and directors

behaviour following her move to another gas

from personal liability for its debts, but

“A corporation is an abstraction. It has

supplier in May 2006. From August 2006,

protected the company itself from legal

no mind of its own any more than it has a

British Gas sent Ms Ferguson an unstoppable

liabilities which a natural person cannot

body of its own; its active and directing will

torrent of bills and threatening letters. The

evade.’

must consequently be sought in the person

letters consisted of three variously connected

of somebody who for some purposes may

threats; disconnection, legal proceedings,

Counsel for British Gas came in for particular

be called an agent, but who is really the

and reporting to credit rating agencies. Ms

criticism over the failure to provide ‘as full a

directing mind and will of the corporation,

Ferguson attempted to contact British Gas by

citation of authority about corporate liability

the very ego and centre of the personality of

phone, through writing a number of letters

as might be appropriate’ (per Jacob LJ). As a

the corporation.”

(including two to the Chairman of British

result, the Court of Appeal asked their judicial

Gas), and indirectly, via a complaint to

assistants to carry out further research into

This doctrine has had the effect of imposing

Energy Watch. Her attempts were met by a

the recent case law.

a tough burden on claimants.

combination of unresponsiveness, apologies

further cases being considered, including;

a claim against a small company will be

and additional threats.

Essendon Engineering v Maile [1982] Crim

relatively easy, where there may be only one

LR 510; Group Newspapers v SOGAT [1987]

or two individuals who comprise the entire

British Gas applied unsuccessfully to strike

ICR 181; Tesco v Brent [1993] 1 WLR 1037;

management structure.

out the claim. On appeal from the decision of

Re Supply of Ready Mixed Concrete (No.2)

will be much more difficult to bring against

HHJ Seymour QC, they argued, inter alia, that

[1995] 1 AC 456; Meridian Global Funds

larger organisations with complex internal

they could not be held liable as she had not

Management Asia v Securities Commission

structural arrangements.

brought the claim against a ‘named employee’

[1995] 2 AC 500; Re British Steel [1995] 1

of the company.

WLR 1356; and Cambridgeshire CC v Kama

It is worthy of note that the House of Lords

[2006] EWHC 3148.

in Lennard's, considered that where the

They contended that Ms

Ferguson needed to sue either an employee

This led to a raft of

Bringing

However, claims


04

the barrister

‘directing mind’ defence was raised in

‘identification doctrine’, stating that he could

the company itself from legal liabilities which

response to an action, the responsibility for

‘not believe that Parliament intended the

a natural person cannot evade’.

discharging the burden of proof lay with the

large company to be acquitted but the single-

company raising it.

handed shopkeeper convicted’.

As the defendant had

We’d like the job

Future developments There has been a recent legislative push to

failed to call the relevant individual to give

Statutory interpretation

restrict the loophole created by the ‘directing

In Ferguson, the relevant statute was the

mind’ principle. The Corporate Manslaughter

Protection from Harassment Act 1997.

It

and Corporate Homicide Act 2007 has made

does not contain a defence of corporate

it significantly easier for the police and

Applying the doctrine

‘due diligence’, or ‘accidental’ harassment.

Health and Safety Executive to bring an

The doctrine of identification has resulted in

Instead it uses comparable language to the

action against a large corporate body for

a situation where large anonymous corporate

Video Recordings Act.

For instance, s.1(2)

manslaughter occurring as a result of fault on

entities are better placed to escape criminal

refers to the knowledge, or presumption of

the part of the body itself. Following on from

liability than their smaller counterparts. As

knowledge, of a reasonable person, in relation

this landmark piece of legislation, the Health

the subsequent case law shows, the courts

to the offence. Perhaps unfortunately, as the

and Safety (Offences) Act 2008 introduced

have made some attempts to mitigate against

case only concerned an application to strike

the option of custodial sentences as well as

its worst effects.

out, the court was not addressed in detail as

an unlimited fine in cases involving a breach

to the question of the level of knowledge of

of health and safety legislation.

evidence, the House of Lords held that he should be regarded as the directing mind of the company for the purposes of the claim.

The rule was applied in the leading case

British Gas in this particular case. While the ruling in Ferguson does not close

of Tesco v Nattrass [1972] AC 153. This concerned a prosecution under the Trade

The court was careful to limit the application

the door to raising a ‘directing mind’ defence,

Descriptions Act 1968. Tesco escaped liability

of its decision in Ferguson to the instant

it does raise serious questions about its

through the defence provided under s.24(1),

case.

As Jacob LJ noted, ‘one cannot just

application in future cases. The question of

which applied where the offending action

jump from one Act to another and say the

how Ferguson applies to future cases is likely

had been undertaken by ‘the act or default

rule for one is the rule for the other’. Whilst

to be subject to a considerable amount of

of another person’ and Tesco had ‘exercised

it is still the case that each statute will need

debate by lawyers on all sides of the issue.

all due diligence to avoid the commission of

to be approached sui generis, some general

such an offence’. Responsibility rested on

points can be discerned from the authorities.

------------------------------------------------------

the actions of the individual employee, and

Crucially, where the legislation in question

Thom Dyke is a barrister.

it was held that on the appropriate statutory

does not contain a due diligence defence,

V:\FERGUSON

construction the company could avoid liability

or refers to real or imputed knowledge, it is

BARRISTER\FERGUSON - THE BARRISTER

via the s.24(1) defence.

unlikely that companies raising a ‘directing

[TD 15-04-09].DOC

V

BRITISH

GAS\THE

mind’ defence will be successful. Tesco was subsequently involved in a case which turned on the application of the same

The approach of the courts has been

principle to a different statute. In Tesco v

largely sympathetic in relation to individual

Brent [1993] 1 WLR 1037, the Divisional

claimants bringing actions against large

Court rejected the argument that Tesco as a

corporations. Indeed, the judgment opens

corporate entity could not have knowledge

with Jacob LJ opining that ‘it is one of the

about the age of a 14-year-old purchaser

glories of this country that every now and then

of an 18 certificate video.

However, the

one of its citizens is prepared to take a stand

court noted that the language in the Video

against the big battalions of government or

Recordings Act 1984 referred to knowledge

industry’. Sedley LJ highlighted the disparity

and information and not due diligence.

of arms, noting that ‘it would be remarkable

Staughton LJ recognised the potentially

if…the privilege of incorporation not only

harsh effect that could arise as a result of

shielded its shareholders and directors from

taking too strict an approach to applying the

personal liability for its debts but protected

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Sentencing solutions The unsustainable levels of people imprisoned in Britain today is indelibly linked with short-term sentencing. A significant proportion of prisoners housed in UK prisons are on sentences of one year or less, and it is the magistrates who primarily hand down sentences to this group By Roma Hooper, Director, Make Justice Work

B

which can offer a more holistic, wrap around

safety and well-being and cannot reduce the

re-offending and most importantly, reducing

set of rehabilitative interventions such as

likelihood of low level offenders continuing

the number of victims. Let common sense

drug and alcohol treatment programmes,

to re-offend. More low-level offenders need

prevail – it is not just about saving money but

literacy, accommodation and job /training

to be funneled into robust alternatives to

it also about what works.

opportunities – the system will continue to

custody rather than sucked into the prison

perpetuate an unrealistic expectation that

system. If things continue as they are

building more prison places is the answer to

magistrates will soon find themselves in a

all ills. The reality is that prison does little

position where 12 months custody seems

to reduce the number of victims and does

inadequate. The real imperative is to support

absolutely nothing to reduce re-offending for

magistrates to ensure that they are confident

short sentenced prisoners.

in their choice of community sentences for low level offenders. Surely in this economic

ritain is locking up its

crimes which has created a net widening

community sentences for low-level offenders

citizens at record rates.

phenomena criminalising more members

who require, for example, drug treatment

The number of prisoners

of society. The proposed solution by the

and mental health orders are inconsistent

in England and Wales

Magistrates

the

and vary from area to area. Furthermore,

has increased by 30% in

sentencing powers of magistrates – giving

national and local funding cuts mean that

the ten years from 1997

them the ability to sentence offenders to a

a magistrate is often hamstrung when

to 2007. When Labour came to government

maximum of one year in prison instead of

deliberating about accessible appropriate

in 1997, the prison population was just

the current six month limit – may provide

community sentences for those on the cusp

over 60,000.

temporary respite for the public but does

of custody.

Previously it took nearly

Association

to

increase

four decades (1958 to 1995) for the prison

not

population to rise by 25,000. The buildings

that prisoners receiving less than a twelve

that house them are bursting at the seams

month sentence receive no support from

All this adds up to an over-reliance on prison

and overcrowding is endemic.

It is in this

the probation service after custody, unlike

for offences that – while unacceptable and

context that the debate over the sentencing

if they were serving a community sentence.

damaging to victims and wider society –

powers of magistrates was reopened in April

The suggested change would inevitably have

should not warrant a custodial sentence. The

with the announcement that the court system

an immediate knock-on affect for Britain’s

lack of options open to magistrates when

will soon undergo an overhaul.

prison system by potentially driving up

sentencing is a symptom of a government

the short

which has blindly followed a “lock’em up”

to Magistrates are a vital and important part of

address

the

fundamental

problem

sentenced prison population

unmanageable

levels

in

an

already

overcrowded system.

approach to criminal justice in attempt to appear tough on crime.

Rather than

the UK court system but the number of cases

adequately distributing funds into establishing

they are dealing with has fallen away by

a coherent and robust set of alternatives

between a quarter and a third over the last

The

people

to prison for low-level offences which can

few years - due in part to the abandonment

imprisoned in Britain today is indelibly linked

reduce re-offending, the government has

of Custody Plus when magistrates could have

with short-term sentencing. A significant

created a sentencing culture where custody

sentenced someone to an under 12 month

proportion of prisoners housed in UK prisons

has become the default option. Doubling

sentence, most of which would actually have

are on sentences of one year or less, and

the length of custodial sentences magistrates

been served in the community. At the same

it is the magistrates who primarily hand

can hand down to 12 months is counter

time, police powers to deal with more minor

down sentences to this group. In response

intuitive to their role as volunteer members

offences have reduced the number of cases

magistrates say that rather than increasing

of their local communities. It remains totally

coming to magistrates’ courts

Yet, since

their powers to reflect the changing face

appropriate for those more serious cases to

1997, 4,000 new criminal offences have been

of Britain’s laws, the sentencing options

be dealt with in the Crown Court.

created. That’s seven laws a day, and it is

open to magistrates when hearing cases has

the magistrates’ court that largely has to

contracted or at best stayed still. Unlike

implement them. More of a concern is that

custodial sentencing where a magistrate’s

So unless we divert money away from prisons

there has been an up-tarrifing of certain

options are clearly defined by guidelines,

into badly needed community sentences –

unsustainable

levels

of

07

recession it is time to divert money away In conjunction with pressure from magistrates

from building new prison places into robust,

there needs to be a wide spread challenge to

well managed alternatives to custody so

government by our judiciary, campaigners,

that magistrates' powers are not reduced.

key stakeholders and members of the public

On the contrary, rather than focusing on

pushing the line that the existing prison

sentencing people to prison for ineffective

system is utterly disingenuous to victims and

short sentences, they can confidently use

the public. Imprisoning low-level offenders

community sentences. Evidence confirms

does not improve the public’s sense of

these are more successful at reducing


08

the barrister

the barrister

Financial Loss Modelling in Litigation Financial loss modelling is a valuable and cost effective tool in dispute resolution. By Frédérique Hardy, senior manager in the London office of RGL Forensics

C

omplex

mathematical

from railway stations, hospitals, schools,

that operate in areas of industry with complex

models have been widely

to corporate entities and sporting events

revenue and cost structures, which do not

used and relied on to value

with consumption patterns which differed

respond well to accounting simplification. In

the assets, the returns,

significantly between outlets.

such cases, although accounting data may be of a manageable size, the loss can be

and the risk profiles of It would have been neither cost effective

more accurately computed if it reflects the

credit

nor feasible to review the purchases of each

complex underlying economic principles of

crunch crisis. These models have come under

individual outlet separately, nor indeed,

the company’s operations.

severe criticism for becoming so complex

to

that their end users could not understand

calculations.

them properly and so disconnected from

establish which outlets had been compliant

the underlying economic reality they sought

with, and which outlets had been in breach

to reflect as to become misleading (not to

of, the supply agreement.

the

securities

which

mortgage-backed

precipitated

the

prepare

several

thousand

Another

difficulty

individual was

to Case study - the airline Take a hypothetical example of the financial loss suffered by an airline following the crash

say costly). Paradoxically, in the current climate, companies are more keen than ever

To overcome this, a financial model was

of one of its aircraft. The airline could suffer

to quantify financial losses of increasing size

created. A large amount of financial data

disruptions to its entire operations, with a

and complexity, which makes financial loss

was collated for each outlet, and input into

diminished fleet flying emptier planes and

modelling all the more relevant.

the model. Outlets were then grouped by

losing both revenues and profitability against

category of cost behaviour and divided

the relatively high cost base of maintaining

between those that were compliant and those

its flight schedule. Loss modelling can be

Handling large amounts of data

not, depending on whether their actual spend

used to measure the impact of the accident

Loss modelling in the context of legal disputes

with the supplier was deemed to be in line

on each revenue stream as well as each

is the task of assembling financial data and

with expected usage over the period under

cost line. For instance, passenger revenue

variables to arrive at a single or a range of

review. The data within the compliant group

can be modelled for each plane on each

calculations. One of the key advantages of

was used as a benchmark to calculate losses

route and analysed between scheduled flights

a loss model is its ability to handle large

at the non compliant outlets. A key area of

and charter flights. Costs can be computed

amounts of data in a comprehensive and

discussion was how to determine the level of

for each flight depending on the route and

controlled manner.

spend which would show exclusive reliance

aircraft used. The results are accumulated

on the supplier. The strength of the model

into a calculation which accurately reflects

was that this assumption could be changed

the causal link between the accident and

with one click; all several thousand outlets

calculated consequential losses. The model

Case study - the catering firm

being automatically re-categorised between

can be flexed for sensitivity analysis of a

In the case of a dispute between a large

the compliant and the non compliant, and

number of key loss drivers such as; aircraft

catering firm and one of its suppliers, the

the calculation would update in a moment.

swapping between routes, changes to seat

supplier alleged that the catering firm had

Furthermore,

pricing, reductions in flight occupancy ratios,

purchased consumables from alternative

integrated into the model to assist legal

suppliers in breach of a sole supply agreement.

teams in understanding the financial issues.

Although

the

consumables

various

scenarios

were

cost inflation, and fuel surcharges. The detail of the analysis combined with the

represented

a small proportion of the catering firm’s

Reflecting complex revenue and cost

ability to flex the model for changes in key

overall cost base, the claim was significant

structures

assumptions gives a high level of assurance as to the accuracy and reasonableness of the

as the breach was alleged to extend over several years and across several thousand

Financial modelling is also useful when

catering outlets. The catering outlets ranged

quantifying damages arising in companies

overall calculation.

09

Bringing together various areas of

would the costs be if it was shut in phases

best and worst case, which can be helpful

expertise

instead? This financial model relied on both

when establishing areas of strength and

Complex cases often require input from

factual data and assumptions. The factual

weakness in a case, and also for Part 36

various

loss

data, such as actual historic sales and rates

offers.

modelling can be used to bring together

of profit, did not change. Assumptions were

and summarise the findings of experts from

applied to this data, for instance the length

Financial loss models are also useful in

different disciplines.

of repairs, the level of disruption during

highlighting areas of disagreement between

repairs, or the impact of the economy on

experts. Whereas factual data should be

the tenants, to project losses both for the

relatively easy to agree, disagreement on

experts.

In

this

context,

Case study - the copper mine

building as a whole, and for each individual

points of methodology or assumptions can be

In the case of an open pit copper mine

tenant separately. These assumptions were

segregated and their monetary value isolated.

which suffered a landslide, a financial

segregated from factual data and could be

model was created to quantify economic

changed easily, enabling users to request

They

damages. The mining plan was reviewed by

alternative

understand

matters which are outside the expertise of

mining experts, costing by accountants, and

how numbers changed depending on the

the accountant, and presenting the Court

causation by lawyers. The model was set up

assumptions input into the model.

with alternative scenarios depending on the

scenarios

and

are

also

helpful

when

isolating

findings of a team of experts.

to calculate various loss scenarios depending on alternative mining sequences submitted

This scenario analysis was carried out at

by the mining engineers. The model output

round table meetings, with the model shown

Their flexibility is also an asset when it

was used to determine which course of action

on screen and its various inputs and outputs

becomes necessary to quickly incorporate the

would minimise the economic loss while

being updated and debated live. The legal

impact of new disclosure during the litigation

maximising operational safety. The model

team, who was not involved in the detail of

process, especially when deadlines are tight

was also used to compare and reconcile

the financial review, found this a very helpful

and there is no time to prepare a completely

actual losses incurred after application of

tool to gain a better understanding of the key

new set of calculations.

various causation issues, as advised by the

drivers of the loss. Finally, by their very nature, they are ideally

legal team.

Assisting in dispute resolution

suited to developing a settlement matrix in alternative dispute resolution.

The flexibility of the model meant that, as review of the loss progressed, each team

As illustrated in the various examples above,

could update its findings, and the calculations

loss modelling has a number of strengths

Such versatility, when used appropriately,

could be updated quickly and effectively.

makes loss modelling a surprisingly cost

Enhancing understanding of a loss

Accurate

and

comprehensive

handling of large amounts of data

effective tool. It is robust in producing

accurate calculations that rely on complex

Integration of various areas of

expertise into a single calculation model

underlying analysis, and it has one-click

Although financial models are usually relied

flexibility in updating those calculations

on in cases where matters of quantum are

assumptions

for new information, as well as producing

complex, they also offer a unique opportunity

ranges of alternative scenarios. This makes

to stress test quantum for common sense.

and sensitivity analysis

Models which are designed with extensive

Segregation of factual data from Flexibility in producing scenario

it an essential tool in calculating damages.

Live one-click updating

’what if?’ analysis in mind can help enhance the legal team’s understanding of how the

It is these characteristics that make loss

numbers work.

modelling such a strong tool in dispute

Case study - the commercial building

-----------------------------------------------------

resolution. Loss models are useful throughout

Frédérique Hardy is a senior manager in

the litigation cycle.

the London office of RGL Forensics, who specialise in forensic accounting and the

Following a temporary shutdown at a

Loss models can be used by a legal team in

commercial building due to a construction

the development of a pre-litigation strategy.

defect, a financial model was created to

This is because they can be set up to quantify

compare

planned

the financial value of individual legal issues,

remedial work. What would the losses be

as well as measure the combined effect

if the building was shut fully over a short

of issues which may overlap in terms of

period of time, and then re-opened? What

quantum. Assumptions can be changed for

several

options

for

quantification of damages. www.rgl.com


10

a time limit. This, in the parlance of government, is an idea being kicked into ‘the long grass’. The fundamental problem is that the proposal for a bill of rights brings together too many contradictory themes. For a start, any use of the phrase itself is a claim of resonance with the great Bill of Rights 1689 that still sets the course for the modern British state – a constitutional monarchy, the establishment of a protestant religion, a sketch of modern liberties and a line of succession that cuts out the Stuarts. These are big boots in which to strut and only really justified by a degree of political consensus, currently unrealistic, combined with significant content, currently unclear. Any proposal for a bill of rights necessarily entails consideration of the Human Rights Act 1998, the role of the European Convention on Human Rights and the position of the European Court of Human Rights. The government explicitly rules out any qualification of the European Convention in its green paper. David Cameron is not always so clear. In a 2007 presentation to the Police Federation, he promised to repeal the Human Rights Act and give the police more power. Ken Clarke, now brought in to give additional weight to the shadow cabinet, previously called his boss’s proposals for a bill of rights ‘xenophobic and legal nonsense’. The Daily Mail, meanwhile, continues its near-hysterical demonisation of human rights, making little distinction between the Human Rights Act, which could be amended or repealed, and the underlying European Convention, to which the UK is a signatory and by which it is realistically bound for the foreseeable future. UK foreign policy is in enough global difficulty without having to explain to the world the attraction of joining Belarus as the only country in geographical Europe that spurns membership of the Council of Europe. The government apparently wants to keep the Human Rights Act but is attracted to the idea of adding a list of additional duties and responsibilities. It would like to reenforce British identity by restating a list of duties on those within the country. It is also interested in exploring whether there are any home-grown rights that could be added to those of the Convention. The authors of the paper are, happily, not entirely devoid of a sense of irony – or perhaps a gallows humour - as they go about their endeavours. They speculate that a list of duties might include

p.1

11

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the responsibility to pay taxes. Their example is the Italian constitution. This requires ‘everyone to contribute to public expenditure in accordance with their capacity’. However, those currently suspected of Italian tax evasion include Silvio Berlusconi, Fabio Capello and the Venetian gondoliers – the latter shopped by way of an ugly divorce and vengeful wife of one of their number. Italy is not a good precedent for the efficacy of such a general provision. New rights are equally tricky. Both Labour and the Conservatives mention the possibility of a right to jury trial as a specific British right as traditional as roast beef. The green paper mentions that 89 per cent of people supported protection of this right in a recent opinion poll. The difficulty, however, lies, with the devil, in the detail. The green paper points out that juries currently try only 5 per cent of all criminal cases. S43 Criminal Justice Act 2003 even allows the removal of the right to jury trial in certain cases of serious fraud, a proposal that has, in the past, appealed to Conservative as well as Labour governments. So, any statement of the right is likely to be pretty guarded – probably along the lines: ‘Every one has the right to a trial by a jury in a serious and appropriate case’. Fear of public opinion currently keeps the government from bringing section 43 into force. It is difficult to see that a guarded general statement of the kind proposed adds much. Proposals for the articulation of rights in relation to social, economic or environmental matters become even more complicated. The British public, inconveniently for government finances, overwhelming support the statement of a right to health care. Indeed, they seriously want to enforce it in the courts if it relates to such matters as the refusal of anti-cancer drugs on the grounds of expense. Neither Gordon Brown nor David Cameron is too keen. The gGreen Ppaper suggests that we might articulate a series of declaratory rights that are articulated by, but not enforceable through, a bill of rights. No lawyer, and few members of the public, can see much benefit in that. The European Convention on Human Rights sets out a minimum set of rights that apply to everyone – be they Roma, gypsy, paedophile, asylum-seeker, criminal, prisoner. Majority public opinion sometimes wants to qualify those rights. People ask, for example, why obnoxious foreigners

cannot be sent to their home states even if they practice torture routinely or will not get a fair trial. Politicians are uneasy about explaining that decisions of the European Court of Human Rights mean that someone cannot be sent back from the UK to a country where there is a real risk that they will be tortured. They want to hint that there might be qualifications, restrictions, reservations that deprive undesirables of such protection. In reality, not even full abolition of the Human Rights Act would do that. The UK is bound by treaty to comply with the Convention and decisions of the court in which the UK is a party. To be fair, the green paper, though not every Cconservative commentator, explains that. But, the government is drawn to the notion of drafting a declaratory or otiose list of responsibilities as a degree of recognition of the problem. The jostling of both main political parties around some idea of a bill of rights suggest that both see political advantage in hedging their bets on the subject of human rights and, implicitly, the Human Rights Act itself. However, this Aact is, technically, a rather elegantly drafted bit of legislation, the effect of which is now becoming clearer and its jurisprudence more settled and predictable. The European Convention on Human Rights is a largely unexceptional statement of values, drafted by a British team at the Foreign Office. Things could be improved. Parliament could have the courage to legislate on privacy and freedom of expression instead of leaving it to the judges. The quality of the European Court could be improved; the Russians could be pressured to agree to measures to speed up its work. UK politicians could celebrate the protection of liberty that the European Convention gives – such as the prohibition of the retention of the DNA of innocent people. The Human Rights Act retains the supremacy of Parliament and does not allow a court to strike down legislation. Would it not be much better if we just let the Human Rights At settle into the architecture of the constitution and, a decade or so further on, see if we need to address other elements of the constitutional edifice? But that would be logic: this is politics. -----------------------------------------------------By Roger Smith OBE, Director, JUSTICE

Student Barristers Negotiate the Long Road to Competition Success By Charles Shoebridge

A

s with so much in

This was to be our first experience of

of course to get along with the opposition,

life,

invitation

formal negotiation other than as the conflict

working

seemed

harmless

resolution we had learned on our course.

acceptable resolution.

enough.

Arriving

The techniques taught however appeared to

in

the

November

together

towards

mutually

2008,

be equally suited to a deal-making scenario.

Determined therefore to be more submissive,

the email from Anna

Thus, having spent hours analysing facts and

or

Cheunviratsakul, senior lecturer on the Bar

issues likely to arise, researching relevant

approach, on 28 January we went into the

Vocational Course (BVC) at the Bloomsbury

law, assessing our strengths and weaknesses,

final of the college competition, judged

Branch of the College of Law, invited students

and attempting to anticipate our opponent’s

live by Anna Cheunviratsakul and Stephen

to enter the annual college negotiation

positions and tactics, we hesitatingly entered

Illingworth, Acting Head of the Bloomsbury

competition.

our first competition - the negotiation mantra

BVC. On this occasion, a new partnership

of ‘position, question, bargain, conclude’ very

agreement was needed between squabbling

much in mind.

osteopaths – complicated, in what appeared

Negotiation is one of twelve core assessments comprising the BVC finals and, therefore, it

perhaps

more

collaborative,

in

our

to be a developing theme, by two of the

seemed sensible to pursue any opportunity

With around a third of BVC students taking

partners having a relationship without the

for practice. That, at least, was the logic I

part, the first round was decided on a knock

knowledge of the third.

put to my classmate Charlotte Whitehorn, as

out basis. Teams recorded their twenty-five

I suggested we should take part. “Yes,” she

minute negotiation on a DVD, to be assessed

The following day, we learned we had been

replied, “it will be fun.”

by a course tutor who then delivered detailed

selected, from the ten who had reached the

written feedback to each team.

final, as one of two teams to represent the

Notwithstanding, perhaps, the memories of

college at a regional heat of the National

those who once studied for Bar Finals, the

The second round, to which nineteen teams

Negotiation

workload on the BVC is heavy. If however

including ourselves progressed, was decided

undergraduate and postgraduate law school

our decision to take on yet more work, along

in similar fashion.

in England and Wales.

with mooting, pro bono and other activities,

rural neighbours were in dispute in relation

was questionable, it was one also made by

to boundaries, nuisance and trespass –

With the arrival soon afterwards of our

the thirty-seven other teams of two who,

all of which, in the interests of avoiding

emailed instructions, winning the college

likewise, entered the competition.

embarrassment and costs, as well, no doubt,

championship soon didn’t appear to have

as a wish to adhere to the spirit of the CPR,

been quite such a good idea. A contract was

Within days some two thousand words of

the parties desired to resolve by negotiation

to be negotiated for the construction of a

common facts and confidential instructions

rather than recourse to the courts.

stadium in Georgia for the rugby world cup

in relation to our client arrived.

This time, aristocratic

Singing

Competition,

open

to

every

in 2015. Along with competing interests to

sixties television pig stars Pinky and Perky

Our feedback noted that in both rounds

consider and spreadsheets to complete, we

were coming out of retirement, and we were

we had, apparently, rather dominated our

were also faced, by now almost inevitably it

to represent our client in his bid to become

opponents. For weeks, we blissfully assumed

seemed, with the wife of one board member

agent for the pigs’ now retired, and somewhat

this comment to be positive, until our tutors

having run off with another, taking half his

reluctant, creators.

pointed out that, in negotiation, the idea is

prized possessions with her.


12

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Arriving for the regional heat in Birmingham

planning, and legal and factual research,

------------------------------------------------------

on 21 February, teams performed two fifty

together with argument, compromise and

Charles

minute negotiations, each judged by a panel

concession to secure agreement and the

International History and Politics (Leeds),

of three academics or practitioners in a sort of

client’s interests on the day.

was awarded the Graduate Diploma in

negotiation X Factor that assessed negotiation

Shoebridge

is

a

graduate

of

Law with Distinction in 2008, and is due to

outcomes, preparation, flexibility, teamwork,

By seven in the evening, competing was at an

complete the Bar Vocational Course at The

ethics, and relationships with the opposing

end. A gala dinner for competitors, coaches,

College of Law, Bloomsbury in June. Having

team.

Following each negotiation, teams

judges and sponsors followed, after which

won the National Negotiation Competition, he

were further assessed in a ten minute period

the time for announcing the winners arrived.

and Charlotte Whitehorn will now represent

of critical self reflection - an opportunity to

Notwithstanding the mistakes which Charlie

England and Wales in The International

demonstrate potential improvements having

and I realised we had made, we considered

Negotiation Competition, to be held in July

been identified, and lessons learned.

it still possible that we might have won third,

2009 in Chicago, USA.

We now for the first time negotiated against

this was not to be.

He can be contacted at

students from colleges other than our own

The use and abuse of motives and rationality in the financial services industry What makes motives in the investment sector unique is the dual-motive situation. In a criminal case, only the suspect either did or did not have a motive to commit the crime, not the victim. But in the financial sector, there are potential motives on both sides of the transaction By Dr Brian Bloch FATM - University of Muenster Introduction

as a means of illuminating the reasons for

really willing to take extreme risks with their

committing a crime. However, in criminal

money? Not many, and for those unfortunate

the

law, the courts are less concerned with why

few,

dropping,

the defendant committed the crime, than they

evidence to demonstrate such motives and

investors who lose money

are with whether. In the investment industry,

patterns of behaviour. And no one would take

try to figure out whether

by contrast, the whether is there for all to

truly ridiculous, downright foolish risks with

their brokers or banks did

see, but the why is absolutely fundamental in

their own money.

something wrong. When

negligence and damages cases.

E

specially

or even second prize. We soon learned that

c.shoebridge@ukonline.co.uk

13

markets

when are

there

is

generally

sufficient

hard

and, to our relief, found that the basic

Just as I apologised to our coach Anna

techniques

appropriately

however, it was announced, much to our

adapted, be deployed effectively in most

delight and not a little surprise, that we had

there are substantial losses, investors may

situations. Of the sixteen teams at each of the

won the competition.

We were the new

come to the conclusion that the real problem

three regional heats, twelve in total, including

national negotiation champions - a status put

lies not with the markets, but with the

Charlie and myself, were selected to compete

to immediate practical use by the securing of

investment itself and/or the seller. If they feel,

Firms wishing to evade liability for misselling

firm or advisor should be permitted to defend

after the fact, that it was too risky for them, or

or recommending unsuitable investments

himself by claiming that it was the investor

in some way mismanaged or misrepresented,

will generally extrapolate almost any kind

who really wanted to proceed with what was

they may seek compensation or damages. In

of experience into an assumption that the

somewhere between a lousy investment and

taught

could,

in the national final.

free wine for everyone in compensation for the fire alarm disruption of the night before.

The competition is sponsored by the Centre

The classic false argument

But the seller may undoubtedly take such risks with someone else’s money. Consequently, no

such instances, it is common for the seller (or

investor was well aware of the nature (of

financial suicide. It is essential to examine

for Effective Dispute Resolution and, as a

Whilst our success in the competition could

their lawyers) to point the finger back at the

almost any kind) of investment and the

damages or negligence cases in this context

prize, the twelve winning teams attended an

be credited to intense preparation, effective

investor, claiming that he or she understood

attendant risks. Conversely, investors will

of credible movies.

the risks and was willing to take them.

claim that they would never have gone

excellent advanced negotiation techniques

teamwork and flexibility of approach, the

training day at their London offices. Thus

success of the competition itself resulted

equipped, on 28 March battle was joined at

from the hard work of all who participated

Liverpool’s John Moores University, the home

and,

of the 2008 competition winners.

Mark Saunders, principal lecturer in law at

in

particular,

the

organisation

of

Kingston University. For the teams, suffering sleep deprivation

ahead, had they but known. In the face of

The double motive in financial cases

Often, the seller will point to previous

such defences, it is necessary to consider

investment experience as a justification

the motives, not only of the investor, but of

that the investor knew what he was getting

the seller, and to take a long hard look at the

The crucial point is whether a rational and

and “wanted it”. The issue of what really

investment itself.

informed investor would have had a plausible motive to take on a particular asset and level

constitutes such investment experience is

of risk. And equally crucial, how strong was

indeed a significant topic in itself. However,

the motive of the seller to sell? Was this a

from a night of last minute preparation and

As a means of making deals and resolving

the purpose of this article is to consider the

Alternatively expressed, when the losses

false hotel fire alarms, the competition proved

disputes the future of negotiation is assured

issue of motive as the key to determining

are there, firms attempt to justify their

particularly lucrative item? It is the interplay

whether the investor would realistically,

recommendations

of motives - or lack thereof - on both sides

and on a balance of probabilities, have gone

extremely generalised desire to make (a lot

ahead with an investment if he/she had really

of) money, largely irrespective of whether or

understood its nature and context.

on

the

basis

of

an

a feat of endurance. Over some seven hours,

and, notwithstanding its uncertain future

three relatively complex negotiations were

as part of the BVC, the ability to negotiate

interspersed only with preparation, feedback,

effectively is, arguably, a core advocacy skill.

not the decision to proceed really made any

What makes motives in the investment sector

reflection,

preparation.

Even for that reason alone, taking part in the

sense at the time – for the buyer in question.

unique is the dual-motive situation. In a

Continuing the rugby theme, they included a

Negotiation Competition is recommended for

However, even if people are truly greedy and

criminal case, only the suspect, either did or did not have a motive to commit the crime,

and

yet

more

that reveals the truth.

three way negotiation to decide a semi-final

anyone embarking on a legal career, and our

The nature and meaning of motives

out to make a quick profit, they are likely to

venue, a multi-faceted hotel dispute, and a

experience of doing so was overwhelmingly

In law, and particularly criminal law, a motive

act in a certain way and not in another. That

not the victim. But in the financial sector,

is what induces people to act in a certain

is, they will act rationally.

there are potential motives on both sides of

collaborative exercise to create and agree a multi-million pound closing ceremony. All involved many hours of prior analysis,

positive. And, yes, a lot of fun too.

way. It causes the decision or behaviour. The

the transaction. The buyer is motivated by the

legal system allows a motive to be proven

desire to make a profit and the seller likewise. After all, how many investors out there are

If it was an essentially bad investment from


14

the barrister

the barrister

Irrationality and Mistakes

15

and ethical obligations, a serious mistake on

interrelationship that reveal who did what

the part of the buyer is not much of a defence.

and why. A comprehensive investigation of

the start, but one that made money for the

a 45 year old man would be very foolish to

Especially in the context of a risky portfolio,

seller, on a balance of probabilities, this was

have such an undiversified and “all-the-eggs-

passivity and reliance on the fund manager

a misselling. If, on the other hand, the asset

in-one-basket” portfolio. On the other hand,

are signs of an inexperienced investor who

There are indeed people who get carried away

was basically sound, but went wrong for

a stockbroker would have a very compelling

was taken for a ride.

by greed, but in such instances, one needs to

legitimate reasons beyond the control of the

motive to foist such an investment on the

A continuum of probabilities and the zone of

look for credible evidence of behaviour of this

seller, there should be no damages claim.

unwary. After all, that is his stock in trade

uncertainty

kind, and at the seller in order to establish

Why would an investor go ahead with

of the investments themselves. On this basis,

whether meaningful warnings should have

a particular purchase?

There has to be

firms, courts and ombudsmen should make

been and were given. Such a warning must go

something in it for them, unless they are

decisions as to negligence, misselling and

The above examples are particularly clear

considerably beyond small print stating that

irrational, crazy, making a mistake or –the

awards of damages.

cut, but this is not always the case.

“the value of your investment may go down

victim of some form of misselling. Most acts of

and he does well out of the deal. Motives and the perennial conflict of interest

the actors on both sides of the transaction

Conclusions

is

indispensible.

This

includes

the

circumstances, laws, obligations and nature

The intrinsic problem in the investment

Similarly, no one would invest a large

industry is that higher-risk investments

proportion of his/her wealth in what is

as well as up”. Particularly, but not only where

investment cannot fairly be attributed to greed,

------------------------------------------------------

are more profitable for the seller than low-

nothing more than a so-called “closet tracker”,

there is a “duty of care” to the investor, any

imprudence or error, and neither should such

Dr. Brian Bloch

risk ones. Simultaneously, however, the

a standard collection of equities that simply

In terms of motive to buy, investments run

honest and indeed prudent firm would ensure

behaviour constitute a defence for the seller,

FATM - University of Muenster

investment literature has demonstrated quite

goes up and down with the market. There is

the gamut from being totally undesirable to

that an appropriate warning is issued to the

beyond true “execution only” situations. The

Fliednerstrasse 21

clearly that most people are risk averse.

no motive for the buyer in this instance, but

extremely promising. Subject to the crucial

buyer that the investment is risky and may not

person must stand to gain something, or have

48149 Muenster

Finally, investment psychologists have proven

the seller, once again, earns handsomely from

condition that the investor understands

be suitable.

reason to believe that this is the case - if there

Germany

that people suffer more from losses than they

a low-maintenance product. The point is that

the true level of risk and real nature of the

are to be claims that he agreed to it knowingly

Tel: +49(0)251 83 29921 (office)

enjoy the equivalent level of gains.

if the investor wanted to “buy the market”,

investment, the likelihood of a knowing and

Similarly,

and deliberately.

Tel: +49(0) 251 857 0199 (home)

he would do through a real index tracker at

deliberate purchase can therefore be divided

mistakes are not necessarily liable for them.

lower cost and complete transparency.

into five groups along a continuum:

Where a mistake was indeed made, the

customers

who

simply

make

Fax: 0049 (0) 251 83 31438

This means that in both psychological and

motive was then misconceived, being based

Motive is a reliable behavioural guide in the

Main email:

financial terms, sellers are more likely to

on misunderstanding, ignorance or deceit and

financial services industry. But the motives

brian.bloch@marketing-centrum.de

push high-risk products than buyers are to

Talking of transparency, excessively complex

1. Impossible – a clear dud that any genuinely

thus not genuine. Accordingly, depending on

on both sides count, those of the buyer and

Alternative email:

buy them - knowingly and deliberately, that

and cost-laden certificates or insurance

experienced, fully informed and rational

the selling situation and the attendant legal

the seller, and it is the plausibility in the

brianjbloch@hotmail.com

is. There is probably nothing more important

policies which are commission-heavy and

investor would avoid

in the context of investment motives than this

financially inefficient are similarly purchased

2. Unlikely

point. In the absence of clear and convincing

only by the naïve and exploitable. To ascribe

3. Possible

evidence of risk-friendliness or risk-aversion,

implausible motives after the fact is an old

4. Probable

it should be assumed that investors want a

trick, and a very unjust one.

5. Definitely – an outstanding investment.

Where people are genuinely risk friendly, they

The extreme positions of 1 and 5 are crystal

would invest in a sensibly diversified portfolio

clear, and 2 and 4 should also not present

of high-risk assets, such as a prudent mix of

major investigative problems. Number 3 is

foreign funds or corporate bonds, venture

more problematic. But even so, it is generally

capital, hard assets etc. The prices of these

possible to determine whether one is dealing

Even if someone is really risk friendly,

assets would also not be inflated, but fair

with

such motives cannot be ascribed unless the

and with the promise of good rates of return.

that went wrong, as such things can, or

investment made sense. A truly “adventurous”

Furthermore, they would normally ensure

whether this was a misselling, an unsuitable

investor will obviously still attempt to avoid

that the portfolio is monitored regularly and

investment or something even worse.

stupid risks that are statistically likely to

managed actively.

moderate to low level of risk. Few investors are really risk friendly, and certainly not those who really cannot afford to lose money.

Irrational versus rational high risk

a

reasonable,

rational

investment

end in disaster. If the investment in question

The continuum and the associated motives

was, to put it bluntly, quite mad, it is absurd

to invest are also subject to the usual key

to assume that the person really understood

If such investment/s go wrong, it will, in most

contextual factors, such as the investor’s

and wanted it.

cases, subsequently be quite clear that there

age, personal circumstances and risk profile.

was a valid and rational motive to take the

And let’s not forget the state of the market

risks at the time of investment. This is a far

at the time of investment! There is no

For instance, an 80 year old lady would be

cry from post-loss allegations that an investor

plausible motive to plunge in grand style into

irrational indeed to put 80% of her assets

understood and wanted an investment that

overheated and euphoric markets.

into the stock market, particularly if equities

really made no sense at the time for the

were relatively expensive at the time. Even

buyer, but was clearly beneficial to the seller.

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180x125-IQ-en_UK.indd 1

19.02.2009 14:02:06 Uhr


16

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Change you can believe in: What new rights against associative discrimination mean for claimants By Matthew J Smith BA Oxon, PGDL Brookes, LLM Inns of Court School of Law

T

1. COLEMAN v ATTRIDGE LAW he recent European Court of Justice case of Coleman v Attridge Law1 demonstrates the potentially radical changes the Tribunal System can affect in day-to-day life. Sharon Coleman worked as a legal secretary for a firm of solicitors called Attridge Law. Her son was disabled within the meaning of the Disability Discrimination Act 1995. She was not. His disability required that she take more time off and consequently more paid leave to care for her son. Attridge Law refused to grant her the same flexibility in her working arrangements as those of colleagues with non-disabled children. She was then subjected to disciplinary action and Attridge Law failed to deal properly with a formal grievance she lodged against her illtreatment. Sponsored by the Commission for Equality and Human Rights she brought a claim for constructive dismissal and disability discrimination against the firm.

At the prehearing review the tribunal chair decided that the question of whether discrimination by way of association with a disabled person is prohibited by the Equal Treatment Framework Directive2 should be referred for a preliminary ruling. On 17th July 2008 the ECJ decided that the Directive and, in particular, Articles 13, 2(1)4 and (2) (a)5 had to be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions was not limited only to people who were themselves disabled. Moreover, Articles 1 and 2(1) of the Directive had to be interpreted as meaning that the prohibition of harassment laid down by those provisions was not limited to applicants who were themselves actually disabled. Sharon Coleman, as an associate, was found to have an action against Attridge Law for disability discrimination and harassment. On 2nd April 2009, nearly a year on,

Harriet Harman’s Equality Bill if enacted will extend the law on direct discrimination to include discrimination by association and

perception to disability, sex, gender reassignment and age in both the employment field. This article considers where a Coleman claim might emerge and the difficulties posed by existing arrangements which associates will still need to overcome in order to bring their cases to tribunal.

2. WHO BENEFITS? ASSOCIATED CARERS The first group of beneficiaries are associates. But where is the greatest incidence of association? There are currently 6 million people providing unpaid care in Britain, most of which are women. Moreover 2.6 million employees juggle the role of unpaid carer with their job6. Carers UK7 have raised the profile of carers who find themselves in the same position as Sharon Coleman. In the context of an ageing population, greater medical recognition of psychological and anxiety related conditions, cultural diversification and changes in government policy pertaining to schooling for the mentally disabled and the shift from care in the community to care in the home are all factors contributing to the need to re-assess the rights of carers and associates of disabled individuals. Progress in the understanding of disability The status quo before Coleman arguably saw disability discrimination law in the UK fail to keep pace with our understanding of disability as society has evolved. The great majority of disability discrimination claims turn on whether someone actually succeeds in being classified as being disabled. Now if someone is sacked from work owing to absences related to depression, then their claims no longer exist purely in unfair dismissal alone, now they also arise under disability discrimination. Discrimination based on perception This is an area that still needs clarity. If there is a perceived disability, how do you prove this? This issue is especially relevant

to cases which concern perceived illness. Instances of discrimination against an individual on the basis of perceived disability is also complicated because barristers are dealing with the infliction of an act which in itself tends to cause an illness in the form of stress. These situations might also involve religion and belief for instance there may be cases where in a civil marriage one party is a Muslim, the other is not and adopts and Islamic surname. However issues of association and perception occur far more frequently in cases of disability’8. Sale of goods and service cases A major source of such claims in associative discrimination will be sale of goods and services cases. These are situations such as where someone tries to enter a cafe attended by a disabled person and is turned away because of their disabled partner. Similarly one can imagine the scenario of a disabled person trying to get into a nightclub and his or her associates being turned away because of their disabled partner.

INTERSECTIONAL DISCRIMINATION Claims of an intersectional nature have the potential to multiply the likelihood of discrimination by association. In Bahl v The Law Society9, an Asian woman claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and also on the grounds that she was a woman. The Court of Appeal preferred to try discrimination in this case under separate heads. The powerful minority judgment of Madame Justice L’Heureux Dubé in the case of Canada (A.G.) v Mossop10 stated: ‘... categories of discrimination may overlap, and individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination’. Sexually transmitted diseases Discrimination law practitioners might anticipate claims of an intersectional nature involving those who cared for people with HIV and groups with whom HIV is associated

in the public mind such as gay men, black Africans, injecting drug users, family members of those injected with HIV, carers and health professionals working in the field. Cultural differences Associative Discrimination claims may arise in different measures across different cultural groups. It is an established fact that because of social changes, an increasing proportion of single mothers in the UK are of Afro Caribbean origin. Furthermore, another cultural factor at work here is the number of Asian families and households where there are more than one generation live under the same household’ stonetime.co.uk11. Women There is also talk of the ‘Sandwich’ phenomena. This concerns women in their 30s and 40s who have young kids and elderly parents. Poverty Viewing discrimination law in its proper social context, the state of being a carer is in a large part a correlative of being poor. Instances of associative discrimination are going to hit the most vulnerable people first. There is a practical question to be asked here: What length does a parent go to support their disabled child? Do they go as far as to lose their job?

YES WE CAN? The press made much was made of the general phenomenon of floods of claims resulting not from changes in the statute but changes in the case law. This generated the impression that Coleman had granted the right to reasonable adjustments to carers of disabled children. In reality Sarah Coleman was found to have rights in direct discrimination and harassment. Coleman is therefore limited to old fashioned prejudice cases, direct and indirect discrimination cases and harassment. Moreover the irony might be that in all probability Coleman actions will make up only a small number of disability discrimination cases.

These cases may prove to be too complex and require the attention of committed practitioners. Employment law Bar How prepared is the employment law bar? There is no legal aid for discrimination law work. People suffering this form of discrimination are going to be poor people, vulnerable people. It is very rare then that these cases are going to be picked up by solicitors and barristers. If Sarah Coleman had a sufficiently high paid job she would have paid for a nanny and there would have been no problem in the first place. The most important practitioners in this field will turn out to be those who will feel that associative discrimination needs to be pushed as part of the wider social landscape. Tribunals Associative discrimination is like any legal development. The effectiveness of a legal right depends on how receptive a judge is to it. Judges will need to act fairly and speedily. If a claimant in Sharon Coleman’s position was faced with a hectoring cross examination, this would have to be stopped by a tribunal chair acting within the Overriding Objective. General awareness Frequently somebody who is mentally disabled will not be aware that they are subject to acts that are intended to cause injury and hurt to feelings. People in the caring professions are potentially very vulnerable. In many situations, claims will be a last resort. Sarah Coleman had the benefit of good advice at an early stage. Employers At the end of the day it is employers who will drive changes in this area. This is a question of accommodation. Employers will want to stay ahead of the game because they want a compliant workforce. Employers will address associative discrimination and orientate their policies appropriately irrespective of what the law says.

HOPE SPRINGS ETERNAL Practical difficulties Referral agencies Community Advice Bureaus and Law Centres will have little involvement here precisely because there is no legal aid funding for discrimination law claims. Moreover the financial incentive for referral agents to take up volume cases creates difficulties for claimants in associative disability discrimination cases. Associative discrimination cases will make up a much smaller proportion of cases overall.

The emergence of rights against discrimination for associates highlights the extent to which discrimination law can be conceptualised as a social weapon. It will be interesting to see how intersectional and associative discrimination develop in terms of the language used before tribunals. How long will it be before we start thinking of employment law in terms of human rights? It could be argued that human rights could well encapsulate intersectional and associative discrimination.

17

Equality meaningfully understood consists of human dignity and personal autonomy. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation. In the words of Sharon Coleman, “we are one step nearer to stopping people with caring responsibilities like me from being badly treated and harassed at work. It has taken a lot of courage to fight this case, but no-one should have to choose between caring for disabled relatives or their job”12.

1Coleman v Attridge Law C303/06 2EC Equal Treatment Framework Directive 2000/78 ‘Establishing a framework for equal treatment in employment and occupation’, formally adopted on 27th November 2000. 3‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’. 4‘For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’. 5‘For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice. 6Carers UK. 7www.carersuk.org 8Appendix V: SR 4 9[2004] IRLR 799 10[1993] 1 SCR 554 at p 645 11Appendix V: JIL 20 12Commission for Equality and Human Rights: ‘Mother’s landmark legal victory could herald new rights for Britain’s six million carers’.


18

the barrister

the barrister

19

Jackson: a ‘review for review’s sake’ or a ‘valiant effort’?

a key is to understand their interaction with

Indeed we know from the conversations we

access to commercial (or other) justice:

third party funding. Furthermore, the picture

have had to date with LJ Jackson and his

surely we are all agreed in principle that the

is not a static one – indeed the market for

committee, that they recognise just how much

way litigation is funded should not prevent

ATE products is particularly fast-moving,

of the recent innovations in litigation funding,

any individual or corporate, large or small,

involving all manner of innovation. This is

and thus access to justice, have come from

asserting their commercial rights when

By Bob Gordon, CEO, 1st Class legal

a complex picture and to oversimplify it is to

the ATE corner of the market. The point here

they have a meritorious claim. Those of us

misunderstand it.

is that there is so much more to come - even

heavily involved in this area, who understand

O

n 8 May the attention of

As a consequence…has the real potential to

nevertheless has significance in terms of

the

deliver’ (Anthony Hughes, president of the

leveling the playing field between plaintiff

Forum of Insurance Lawyers).

and defendant – and thus significance in

to

legal the

world

subject

turned of

civil

litigation costs as Jackson

terms of access to justice: this is the issue

LJ revealed the terms of

One of the main discussion points around

regarding payments into court providing

reference of his year-long

the Jackson Review, particularly within the

security for costs. The key question is, why

review of the matter in his preliminary report.

media reports surrounding it, and in the

is it assumed that only plaintiffs may have

corridors of law firms around the City and in

difficulty in covering the legal costs on losing,

The subject of reducing litigation costs is

the regions, as well as at the Bar, concerns

when the point applies equally to defendants?

close to most lawyers’ hearts as it is critical to

the English Costs Rule - the award of costs

Why should this rule only play to the benefit

London’s competitiveness as an international

against an unsuccessful party – and whether

of defendants?

centre for litigation – and we all have a

it is now time to adopt a different approach.

those funding litigation – and here I should

vested interest in preventing any further

Certainly media reports to date have focused

state my interest quite clearly, as a seasoned

loss of ground to the world’s other centres.

on LJ Jackson’s apparent ‘leaning towards the

provider of funding for big-ticket commercial

Whilst we lead on matters of certainty of law,

modernisation of conditional fee agreements’.

litigation - we would be both prepared

transparency of process and enforceability

The English Costs Rule certainly has its flaws,

and able to back far more cases were both

of our judgments in other jurisdictions, we

but is this alternative that is most often talked

plaintiffs and defendants providing security

cannot say the same when it comes to the

any better? Or to put the question another

for costs. The dynamics of this argument are

matter of cost: on this point our competitors

way, could this pave the way for the type

simple: it’s all about the effect of this on the

have some advantage.

of litigation excesses that commentators

balance of risk and potential reward, in the

From the point of view of

complain of in the US, where a mischievous

eyes of the person underwriting the litigation

So the various strands of the profession

plaintiff bears virtually no risk of having to

costs. This may be a small point of detail,

may be united in a keenness to reduce

pay the other side's costs in addition to their

but given that the advances in litigation

litigation costs, however this does not mean

own, and where the existence of Contingency

funding products have potentially such a key

that everyone has welcomed the idea of LJ

Fee Arrangements means that even if they

role to play in improving the cost dynamic of

Jackson’s review, despite its promise of a

lose, their own costs are covered by the

the London litigation market, and access to

fundamental re-think of issues dear to their

arrangement with their lawyers: thus these

justice for people who believe they have been

hearts.

Indeed some commentators have

mischievous plaintiffs quite literally have

wronged, the perspective of litigation funders

gone on record to say that far from needing

nothing to lose by bringing the most spurious

on this point has a significance and so it is not

a new set of rules to help contain costs, what

claims. Indeed, many commentators blame

one to ignore. Let us hope it is given a proper

is far more needed is for the rules that we

precisely this for the growth of the US's so-

airing in the consultation period which has

have in place already to be followed by those

called 'Litigation Culture'?

The UK's far

just kicked off for Justice LJ’s review – and

managing and judging cases. Other cynics

better response, surely, has been to innovate

that the views of practitioners on the ground

claim the idea of a fresh review is doomed

and find superior ways to back litigation and

are listened to in particular.

from the start, as its roots are in the abject

underwrite the costs – and in this regard we

failure of the Woolf reforms to control the cost

have undoubtedly led the way.

As we all

Good news in the preliminary report was

of civil justice. Immediate reactions from the

know, the market for After The Event (ATE)

the extent to which it did separate out the

big law firms as the 1,000-page preliminary

insurance has mushroomed in the last 12-18

issues surrounding the use of ATE insurance

report was published on 8 May ranged from

months in the commercial litigation market:

in relation to personal injury cases, from

‘Oh God! It’s so big!’ (David Green, Chair of

once seen as the preserve of personal injury

its use in other very different areas of civil

the London Solicitors Litigation Association),

cases, ATE insurance has now entered

and commercial litigation (referred to in

to ‘Here we go again – another review for

the mainstream for increasingly big-ticket

the Report as 'commercial cases'). Indeed,

review’s sake’ (anonymous senior partner)

commercial litigation.

from our own discussions with the Review

to ‘A valiant effort.. that helpfully articulates the

issues’

(Clare

Canning,

partner

committee, we know that they appreciate how

in

There has however been far less discussion,

different the issues are that arise around ATE

the Litigation & Disputes team at Mayer

both at the preliminary report stage and the

depending on the context of the particular

Brown) to ‘The report is neutral in tone and

period leading up to it, about a more detailed

category of litigation involved. However, the

apparently free from political interference.

aspect of the costs dynamic, but one which

point is that these issues do not sit in isolation:

more comprehensive funding methodologies

the dynamics and complexities of the issues

A similar point arises in the review of

that will take to another level entirely the

involved and how they play out in the real

regulation of third party funders which has

current models that the marketplace is only

world, let us ensure that we make the most

been running alongside the Jackson Review.

now starting to become familiar with. These

of the consultation period to make our views

The picture is convoluted because a number

innovations will rely on exactly the kind of

known.

of strands are threaded together and each

interaction between ATE insurance and third

has its own complexities: ATE is an insurance

party funding referred to above and this is

product so it needs to be understood in that

why it is critical that this is fully addressed

------------------------------------------------------

context; but to understand the components of

during the consultation period. This presents

Bob Gordon is CEO of 1st Class legal, a

the risk analysis at the heart of the product,

a significant challenge for anyone tasked

pioneer in the field of ATE insurance and

you need to view it also as a legal issue and to

with reviewing or regulating this area –

litigation funding who has been involved in

understand how it operates in its very special

simply in terms of keeping up with the detail

a number of discussions with LJ Jackson

context of litigation (and now increasingly

of precisely what it is they are regulating!

and his review committee as the preliminary report was prepared – and indeed his

big-ticket and complex); and of course it is a financial product at the same time, bringing

Critical points are at stake here: yes, it is

company is specifically referred to in the

another layer of issues and complexity.

about the financial dynamics of cases, but

report.

Moreover, the market for ATE insurance is

we should also remember the role that

expanding fast – and, crucially, innovating.

costs play in providing, or indeed blocking,


20

the barrister

NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BAR COUNCIL WELCOMES LORDNEWS JUSTICE PRELIMINARY NEWS NEWS NEWS NEWS NEWS NEWS NEWSJACKSON’S NEWS NEWS NEWS NEWS NEWSREPORT NEWS NEWS NEWS NEWS The Bar NEWS Council welcomed Lord Justice Preliminary Report reviewing theNEWS cost of civil litigation which was NEWS published on NEWS NEWS NEWS NEWSJackson’s NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 08 May 2009. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Responses will be sought by Lord Justice Jackson from interested parties over the summer, before a final report and recommendations are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS published in late 2009. The Bar Council welcomes the initiative to review costs in civil matters. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSa NEWS NEWS NEWS NEWS NEWS NEWS The Bar NEWS Council has already established Jackson NEWS WorkingNEWS Group which willNEWS consider the issues raised by theNEWS JacksonNEWS Review. NEWS It is chaired NEWS NEWS NEWS NEWSQCNEWS NEWS Representatives NEWS NEWSofNEWS NEWS NEWSBar NEWS NEWS are NEWS NEWS NEWS by Michael Todd QC, with NEWS Susan Rodway as Vice-Chair. a number of Specialist Associations members of the NEWS NEWS NEWS NEWS NEWStheNEWS NEWSinNEWS NEWS Group and they will be able to represent diverseNEWS views ofNEWS those working the various civilNEWS fields. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar Council also notes with great interest Lord Justice Jackson’s provisional view (see page 172, paragraph 5.5 in the report) on ‘no win NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS no fee’ agreements. The Bar Council recognises that these agreements can provide enhanced access to justice but believes there is scope for NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS reform and improvement. The report’s eventual recommendations will be of great interest to those outside of the legal profession including NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS those in publishing, insurance and healthcare. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSof NEWS NEWS Report NEWSbyNEWS NEWS NEWSMichael NEWSTodd NEWS NEWS NEWS NEWSJackson NEWSWorking NEWS Commenting on the publication the Preliminary Lord Justice Jackson, QC, Chair of the Bar Council NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Group, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The Working Group will consider the issues raised in the report and produce a draft response for the Bar Council which commands the widest NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS possible support from practitioners across the civil field. I note that Lord Justice Jackson has focused on questions relating to cost shifting, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS fixed costs, personal injury claims, controlling the costs of ‘heavy’ litigation, CFAs and ATE insurance, and alternative methods of funding NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS access to civil justice. We are concerned that the ever-increasing costs burden of civil litigation results in a denial of access to justice for the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS many people who cannot afford those costs. That is clearly not in the public interest.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS CALL NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSHIGGINS NEWS NEWS NEWS PROFESSOR DAME JOAN LAWYERS FOR URGENT ACTION NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS APPOINTED CHAIR OF QUEEN’S ON JUVENILE DETAINEES IN NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSHELD NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS COUNSEL SELECTION PANEL GUANTANAMO BAY NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor DameNEWS Joan Higgins has been appointed as the new The Bar NEWS Council, NEWS the Law NEWS Society, NEWS the Criminal Bar NEWS Association, the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS lay Chair of the NEWS Queen’s NEWS CounselNEWS Selection Panel,NEWS replacing Commonwealth Association and the Bar Human NEWS NEWSLawyers’ NEWS NEWS NEWS NEWS NEWSRights NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSGBE. NEWS NEWS applicants NEWS NEWS Baroness Butler-Sloss TheNEWS Panel assesses for Committee has called on the Attorney General of the UnitedNEWS States NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSgiven NEWS NEWS NEWS the award of Queen’s Counsel, to those whoNEWS demonstrate of America to take urgentNEWS action inNEWS cases where those detained in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS excellence in advocacy in the higher courts, following an Guantánamo Bay were captured as juveniles. These concerns are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS objective assessment by it. The Selection Panel set out inNEWS a letterNEWS sent today to theNEWS US Attorney General, Eric Holder.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSundertaken NEWS NEWS NEWS NEWS NEWS is independent, and includes lay members, as well as senior NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The cases include those of a young Canadian, Omar Khadr, and an NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS barristers and solicitors. Afghan, Mohammed Jawad, both detained without trial by the UnitedNEWS NEWS NEWS NEWSsince NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS States military 2002,NEWS and who have now spentNEWS nearly aNEWS third NEWS NEWS The Chair was appointed by a group led independently by Sir NEWS NEWS NEWS NEWS NEWS NEWSGeneral NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of their lives in US detention. The NEWS letter asks the Attorney Roger Jackling KCB CBE, joined by the Chief Executive of the Bar NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to dispose of the NEWS cases of NEWS Khadr and JawadNEWS – as well as those of Council and the Chief Executive of the Law Society. NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS other juvenile detainees Guantánamo - in a manner consistent NEWS NEWSobligations NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS with American under the Optional Protocol of theNEWS UN Professor Dame Joan Higgins has been a lay member of the QC NEWS NEWS NEWS Convention on theNEWS Rights NEWS of the Child. ThisNEWS requestNEWS follows NEWS repeatedNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Selection Panel since 2005; she also chairs the NHS Litigation NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS calls for action from the UK’s legal profession, which have included Authority, and is a member of the House of Lords Appointments NEWS NEWS NEWS NEWS an Amicus brief to the USNEWS Federal NEWS Court inNEWS JanuaryNEWS 2008, and lettersNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commission. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to formerNEWS President BushNEWS and Canadian Prime Minister Stephen NEWS NEWS Harper inNEWS February 2008. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on NEWS the appointment of Professor Dame Joan NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on the continued detention of Omar Khadr and Higgins, David Hobart, the Chief Executive of the Bar Council, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mohammed Jawad, Chairman of the Bar Desmond Browne QC said: said: NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The lengthy detention, putting on trialNEWS for warNEWS crimes, NEWS of NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “Dame Joan has been a lay member of the Panel since 2005, and someoneNEWS who appears to NEWS be a “child soldier” is contrary to the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS this has given her a very firm grasp of the role and the value of special protection to which Khadr NEWS and Jawad are entitled virtue NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSbyNEWS NEWS NEWS NEWS NEWS NEWS NEWS Queen’s Counsel and of the work of the Panel. I am delighted of the Optional provides forNEWS the rehabilitation and NEWS NEWS NEWS NEWSProtocol, NEWSwhich NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that she will now be able to lead selection for the award of Silk. social reintegration of former childNEWS soldiers. We hope that the new NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS She will be the third Panel Chair, following her predecessors administration take this opportunity reconsider the detention NEWS NEWSwill NEWS NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS Baroness Butler-Sloss Sir Duncan Nichol CBE. Their of those NEWS held in Guantánamo who NEWS were captured juveniles.’ NEWS NEWS NEWS NEWSasNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS hard work over the past few years has been instrumental in Paul Marsh, President of the Law Society, NEWS NEWS NEWS NEWS NEWS said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS establishing the new system as robust and transparent.” NEWS NEWS NEWS NEWS NEWSStates NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The ad hoc process devised by the United under the previous NEWS NEWS NEWS NEWS NEWS NEWSisNEWS NEWS NEWS NEWS NEWS NEWS of NEWS NEWS NEWS administration to try so-called “enemy combatants” both illegitimate Des Hudson, theNEWS Chief Executive the Law Society, said: NEWS and irreparably It has no basis in international law andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSflawed. NEWS NEWS NEWS NEWS NEWS contravenes well established laws of war andNEWS humanitarian NEWS NEWS NEWS NEWS NEWS NEWSlaw. NEWS NEWS NEWS NEWS Professor NEWS NEWS NEWS NEWS NEWS NEWS "I congratulate Dame Joan Higgins as the new Chair Prosecution in thisNEWS system,NEWS and indeed any system of NEWS military tribunals, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSCounsel NEWSSelection NEWS NEWS NEWS NEWS NEWS of the Queen’s Panel. I'm sure her invaluable is grosslyNEWS unsuitedNEWS to meeting the requirement of the NEWS Optional NEWS Protocol NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS experience will bring a safe pair of hands to the tiller and will to provide for the rehabilitation and social reintegration of former child NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS continueNEWS the good work of Baroness Butler-Sloss". soldiers such as Mr. Khadr and Mr. Jawad.’

NEWS ROUND UP

the barrister

21

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NICHOL REVIEW OF QC SYSTEM ENDORSES THE NEWS REVISED NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSPROCEDURE NEWS NEWS NEWS NEWS NEWS NEWS On 08 May 2009 the Bar Council the Law Society published the report of Sir Duncan NicholNEWS CBE’s review of NEWS Queen’s NEWS Counsel NEWS Appointments. NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS The purpose of the reviewNEWS was to examine ways of improving the operation the revised process for the appointment selection of Queen’s NEWS NEWS NEWS NEWS NEWS‘toNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Counsel NEWS in England and Wales, which is designed serve the publicNEWS interestNEWS by offering a fairNEWS and transparent means of identifying excellence NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in advocacy’. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The scheme, operated by NEWS the Queen’s Counsel Selection Panel, has run two competitions under a reformed system established in 2006. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS the NEWS NEWS NEWS NEWS NEWS NEWS NEWS Sir Duncan has made a number recommendations for improving system (someNEWS of whichNEWS the Selection Panel will apply in the 2009-10 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS competition), but NEWS his overall findings are that the system works well NEWS in identifying outstanding advocates. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS As part of his task, Sir Duncan wasNEWS asked to consider whether ‘additional forms of excellence such as NEWS both litigation and non-litigation NEWS NEWS NEWSwork NEWS NEWSinNEWS NEWS NEWS NEWS NEWS Counsel NEWS should NEWSand NEWS work forNEWS partnersNEWS in law firms, or NEWS wholly advisory by lawyers non-judicial fora, or the work of General could NEWS be NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS recognised by theNEWS same award of Silk’. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Sir Duncan’s report rejects this suggestion, saying that: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS ‘It is not NEWS the rightNEWS time to NEWS reignite the debate that was resolved between the Bar Council and the Law Society approved by the Lord NEWS NEWS NEWS NEWS NEWS NEWS immature NEWS NEWS NEWS NEWS Chancellor as recently as NEWS three years ago. NEWS The newNEWS process NEWS is still relatively and vulnerable. It is alsoNEWS capableNEWS of beingNEWS refined NEWS and NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS approvedNEWS within its current purpose and toNEWS that endNEWS the review has made a number recommendations.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSattracts NEWS NEWSleading NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Serle Court private international law and trusts expert NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor Jonathan Harris, a specialist in private international law and international trusts, joined leading commercial/chancery chambers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Serle Court as a tenant on 1 May 2009. He will also continue to hold the position of Professor of International Commercial Law at the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS University of Birmingham. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Harris was calledNEWS to the Bar in 2006, and was previously a practising door tenant at Brick Court Chambers. HisNEWS practiceNEWS covers all areas NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS commercial and chancery law. He NEWS has a pre-eminent reputation in the field ofNEWS private NEWS international lawNEWS and is an editor NEWS of the leading work NEWS NEWS NEWS NEWS NEWS trusts NEWS NEWSrenowned. NEWS NEWS NEWS NEWS Dicey, Morris andNEWS Collins,NEWS The Conflict of Laws. HisNEWS work in NEWS the areaNEWS of international is equally He is the authorNEWS of The Hague NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWSTrusts NEWS NEWS NEWS NEWS Trusts Convention and a contributor to Underhill Hayton, Law ofNEWS Trusts and Trustees and to International Laws. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Notable recent cases include Charman v Charman and General Motors Corporation v Royal & Sun Alliance Insurance. He has been instructed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in proceedings in Bermuda, the British Virgin Islands and Jersey and is regularly involved in high value commercial disputes, especially with a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS private international law element. He is also frequently retained in international trusts cases, and divorce cases with an international element. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In addition, he provides numerous expert opinions in foreign proceedings. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Harris isNEWS currently acting NEWS as advisor to the NEWS Ministry NEWS of Justice on the NEWS Proposed EU Regulation Succession and Wills. Previously, he was NEWS NEWS NEWS NEWS NEWS NEWS on NEWS NEWS NEWS NEWS NEWS NEWS involved NEWS in drafting the BVI TrusteeNEWS (Amendment) 2003. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSAct NEWS NEWS NEWSisNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “We are NEWS delightedNEWS that Jonathan joining us”, saidNEWS Serle Court ChiefNEWS Executive, Nicola Sawford. ”His outstanding reputation in private NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSpractices NEWS NEWS NEWS NEWS NEWS NEWS international lawNEWS and trusts will further strengthen our international trusts and commercial and further enhance our reputation as a NEWS NEWS NEWSset.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS blue chipNEWS commercial/chancery NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on his move,NEWS Harris said: “I am delighted to beNEWS taking up a tenancy at Serle Court, widelyNEWS recognised as one of the NEWS leading sets at NEWS NEWS NEWS NEWS NEWS NEWS NEWS suited NEWS NEWS NEWS NEWS the Bar. INEWS believe NEWS that my NEWS interests,NEWS which cover both commercial andNEWS chancery matters, are perfectly to NEWS Serle Court’s areas of practice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The international nature of much of my work makesNEWS Serle Court an ideal choice.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS APPOINTMENT HIGH COURT – NEWS NEWS Cherie Booth urges Manchester NEWS NEWS NEWSOF NEWS NEWS NEWS JUDGE NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS KENNETH PARKER QC NEWS NEWS NEWS NEWS firms to NEWS nurture talent NEWS NEWS BLADES NEWS NEWS NEWS NEWS NEWS NEWS female NEWS NEWS NEWS NEWS HM The Queen has been pleased to approve the appointment of Cherie Booth QC spoke to 200 members of pro·manchester NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS KennethNEWS Blades Parker, Q.C., to be aNEWS Justice NEWS of the High about the importance of NEWS gender equality in the workplace at a NEWS NEWS Esq., NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSWealth. NEWS NEWS NEWS Court with effectNEWS from 2 October business event sponsored by Barclays NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS With herNEWS own strong North West roots, Cherie praised 2009 on NEWS the retirement Mr. Justice McKinnon. NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Manchester as an 'amazing city' and argued that, rather NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthan NEWS The Lord Chief Justice will assign Mr. Parker to the Queen's women working in isolation to champion their cause, they should NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bench Division. He will be known as Mr. Justice Kenneth Parker. be working in partnership with men to achieve success. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Indeed, NEWS she felt strongly that it would be foolish for NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSeconomics NEWS NEWS Mr. Parker, 63, was called to the Bar by Gray's Inn in 1975 and global businesses to ignore half of the population observed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS took Silk in 1992. He was appointed a Recorder in 2000, a Law that firms with women senior positions fare particularly well in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS Commissioner in 2006 and is approved to sit as a deputy High difficultNEWS times because their complementary skill sets. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS Court Judge. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS While women earn 18 per cent less than their NEWS male NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSstill NEWS NEWS NEWS NEWS Mr. Justice [Stuart Neil] McKinnon was called to the Bar by counterparts in the professional world, Cherie recognised NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the NEWS Lincoln's Inn in 1960 and took Silk in 1980. He was appointed a importance of reviewing how far we have come since 1976,NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Recorder in 1985 and a judge of the Queen's Bench Division of which was the first time NEWS the number of women called to theNEWS bar NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the High Court in 1988 accounted for more than 10 per cent.


22

the barrister

the barrister

Lost in legislation: the legacy of Pepper and Hart Ambiguous statutes; seventeenth-century Bills of Rights; eighteenth-century judges; counterintuitive rules; overseas backup to overturn them; and troublesome research: the stuff of legal nightmares or par for the course in 1992’s law courts? Through interviews with two of the key players, we investigate the background to one of Britain’s most celebrated landmark cases and seek to establish whether things could be on the up in 2009. By Alistair King of Justis Publishing about how and why things played out in the

grow.

way they did? Alongside journalistic instinct,

A

marginal costs like food, this would lead

on comments by the Chief Secretary to the

month and its eventual indexing by Justis’s

to a significant reduction in his client’s tax

Treasury during the committee debates.” It

sister service, the provider-neutral JustCite

burden.

was this clue that made Griffiths look at

citator, will its practitioner uptake rise?

the debates, which resulted in the further The good news was that Section 63 of the

at a fee-paying school, and eight colleagues.

hearing.

With numerous improvements to its intuitive search and results handling, all summarized

(now re-codified) Finance Act of 1976 dealt with this specific point; the bad news was

Woolf’s other abiding memory is the time-

at

that it was arguably ambiguous. “What’s the

consuming process of traipsing to and from

could become the first port of call for all

cost of the benefit?” is how Woolf sums up

the Guildhall Library to request hard copies

parliamentary research.

the ambiguity, a simple question to which

of the debate transcripts. “You had to go and

the statute alone provided an inconclusive

ask the librarians to bring the material up

Among other things, Justis Parliament is the

answer.

to you,” he says. “So obviously it was quite

most user-friendly route into the otherwise

a slow process” to find the text of Standing

nearly-impossible-to-search

Committee debates.

Hansard. With access to title and full-text

Any resolution would have far-reaching

From humble acorns do mighty oaks

23

www.justis.com/justisparliament,

full

text

it

of

searches of parliamentary questions, Bills

implications not just for the private education sector but for all manner of employees of

And all this assumes that you know exactly

going through parliament, Select Committees

awareness of some of the luminaries involved

The taxpayers’ case didn’t initially focus on

organizations

similar

what you’re looking for in the first place;

and debates from the Houses of Commons

nd from humble tax cases

in the story suggested to me that such an

the constitutional aspects of the case. But

benefits, such as airline staff, rail workers

speculative searches would rely on the glacial

and Lords, and from the Welsh and Northern

can mighty changes in

investigation

Woolf’s and others’ research on a particular

and the like.

sifting of index cards.

Ireland Assemblies, its users rely on the

constitutional law grow.

reading if they could be tracked down.

would provide useful inside observations on

“At the first hearing [in the Lords], we

Nevertheless, documentary evidence was

the issue at large.

didn’t get a very receptive audience,” Woolf

found. And for the second House of Lords

It also indexes Standing Committee debates;

chuckles. “But Lord Griffiths went away and

hearing, for which Woolf remained the junior,

crucial for the type of research Woolf was

would

make

enlightening

that

could

offer

tax statute impacted on it. And I suspected he

time-saving device.

Yet my analogy is a little

The second reason is perhaps timelier.

slapdash: the tax case in

Informed in a large part by an examination

question set a significant precedent in its

of the first, it’s the issue of research. Though

Still at these chambers, Woolf has seen his

looked at the Hansard debates, which were

“they wanted to get someone who was more

involved in back in 1992. Though it doesn’t

own right: though initially low-key, humble

it had been around for a while, the World

case portfolio swell in the years since Pepper

referred to in the decision in the High Court.”

of a constitutional lawyer involved, so they

yet provide a search of or link into their full

it was not; and, unlike acorns blooming

Wide Web was still something of a geek’s

and Hart. And, like so many of his peers, his

At the time, recourse to such material wasn’t

brought in Anthony [now Lord] Lester QC,”

texts, this facility is a “superb starting point

into oak trees, there was nothing predictable

preserve in 1992; certainly it wasn’t seen

office is piled with paper tower heirlooms to

allowed, as laid down by an eighteenth-

as the silk.

for tracking down relevant ammunition,”

in its growth: the constitutional questions

by many in the legal profession as a serious

his career, many of them as tall as him. But

century judge who argued that it would

it threw up resulted in the overturning of

means of acquiring usable information.

he retrieves the relevant bound law reports –

violate Article 9 of the 1689 Bill of Rights.

a 200-year-old judge-made convention on

Other electronic media – CD-ROMs and the

which he now uses in conjunction with their

But, adds Woolf, “having looked at the

citing parliamentary debates in court.

like – were used but only for very specific

electronic equivalents on the full-text, online

debates, Lord Griffiths managed to persuade

But first it would be remiss to not touch on

according to Masoud Gerami, managing I’ll introduce Lord Lester in a moment.

director of Justis Publishing, who hints at plans afoot to enhance this side of the service.

tasks, not as the default starting point of

Justis legal library – in record speed and

other members of the House of Lords that

some of the research methods available for

Gerami acknowledges that currently the

Few cases have had an impact as great as

one’s enquiries, which the internet has since

immediately deals with my questions.

they should have further argument on the

similar tasks today.

database goes back only as far as 1979; not

Pepper v Hart, [1993] AC 593.

become. On the back of the re-launch of

ideal for Pepper and Hart, which relied on

issue.” This led to the second hearing and

a website that provides a route into the

I ask him to fill me in on the tax issue at

two questions: should one be able to look

But isn’t this a given? The case that set

sort of information the appellant’s counsel

stake.

at parliamentary debates? And if so, what

three separate but interwoven precedents

used in their successful litigation, how

– on tax, on statutory construction and on

might the unearthing of such material have

It hinged on the “benefit in kind to

parliamentary privilege – has been flagged

been different had today’s technology been

schoolmasters [of independent schools at

up for study in law schools pretty much since

available in 1992? And could the availability

which they taught] receiving education for

the final House of Lords rulings. And they

of this technology – Justis Parliament and

their children,” he tells me. “The question

were reported 16 years ago. So why bring

related services – have made it more likely

was whether the tax on the benefit should

things up now?

to seek such courtroom backup in the first

be based on the average or marginal cost

It was a little more complicated that this,

is amazingly useful, as is finding older

place?

of educating a child at that school.” In other

explains Woolf. “The issue came to light

documents and odd material that it would

His cautious response is that the further back

words, should the total cost of running

because we referred the first instance judge,

be difficult to locate elsewhere,” says Joy

it goes the more valuable it would be because

Two key reasons spring to mind.

And so, briefly, to Justis Parliament.

debates from 1976. But he explains that, should earlier data on the full service become

Formerly known as Parlianet when its 3

available – as it might well do – the process

million-record-strong set of data was kept

of adding it to Justis Parliament would be

So was it good luck that you dealt with a

separate from the rest of Justis, it has a

straightforward.

forward-thinking law lord who happened to

loyal base of subscribers. “Being able to find

suggest looking at Hansard?

what’s in the House of Commons, the Lords

Can Woolf see the benefits of such a service

and some of the UK’s devolved assemblies

in his general practice?

would be the outcome of this case?

In 1992 Jeremy Woolf was a young barrister

the school be divided by the number of

Vinetlott J, to a tax guide that referred

Caisley, the Law and Official Publications

the service could be “providing something

The first – and I hold my hands up that 2009

of six years’ call at Pump Court Tax Chambers

pupils, attributed to the schoolmaster’s child,

to an Inland Revenue press release that

Librarian at the University of Southampton,

that’s not easily accessible elsewhere.” He

is no more relevant a year to investigate

in central London. A junior on the case since

and taxed accordingly? Or, as Woolf’s side

suggested such benefits should be taxed on

who adds that she “often refer[s] third-year

adds that potential developments on Standing

the topic than any other – is the history

its first hearing, he – as his set’s name might

argued – ultimately successfully – should

a marginal cost basis.” He continues: “The

dissertation students to it and they find it

Committee reports “would clearly be quite

and background of the case. We can all

suggest to astute readers – was focused on

one accept that the school would run at that

Revenue claimed to have no knowledge of the

incredibly helpful.”

valuable because it would save having to

read the law report. But, outside the realm

the tax issue and was one of the counsel who

total cost regardless of the inclusion of the

press release. Further researches suggested

of those involved, what’s actually known

represented the appellant, Mr Hart, a teacher

schoolmaster’s child? By accounting only for

that the comment may have been based

go to the Guildhall Library or the library in But since its incorporation into Justis this

Westminster, the only two places in London


24

the barrister

the barrister

So how did Lester win them over?

that have them for the older years.”

feature on Justis, is one such tool that would help on the tax side of similar cases; on

But I promised to introduce you to Lord Lester,

Clearly the full answer is longer than I have

the constitutional side, JustCite would have

a silk at London’s Blackstone Chambers,

space for. But what is also clear is that

provided a quick and easy means of tracking

which also subscribes to Justis and JustCite.

foreign precedent played an important role

down some of the aforementioned foreign

in the debate.

precedents – its indexing, deep-linking to full-text case reports and citatory information

Lester is a prolific lawyer. Called to the Bar in 1963, he has been a silk for 34 of those

“We relied on many things from America,

currently includes the UK, Ireland, Australia,

46 years in practice. Alongside the countless

India, Ireland, New Zealand and Australia,”

Canada and Singapore.

cases in public and human rights law he has

says Lester. The JustCite record for Pepper and Hart

fought, he was the then Home Secretary Roy Jenkins’s Special Adviser on human rights;

Back in the day, these former British colonies

shows

he’s served on a number of parliamentary

– and Ireland, which was of course once a

were treated in court, along with similar

the

cases

cited

and

how

they

committees;

awarded

constituent part of the UK – adhered to the

information on the subsequent cases in

numerous honorary doctorates. Quite an

1689 Bill of Rights. But one by one they each

which Pepper and Hart has since been cited

embarrassment of riches. But Pepper and

abolished the rule that Lester sought to help

– in tax and constitutional cases. Its sample

Hart holds its own against this backdrop.

abolish here.

record can be seen for free at www.justcite.

and

he’s

been

com/phsample.

The case was “of exceptional difficulty and public importance,” says Lester, who

The persuasiveness of the arguments used in

adds: “It required a great deal of research

their courts was, in part, behind the decision

But what of the legacy of Pepper and Hart?

into comparative law and parliamentary

made in our court.

Has it really had that great an effect on the type of support material sought by legal

practice.” After all, as Lester points out, one of the

practitioners?

By the time Lester got onboard, establishing

purposes of Hansard was to help with the

that the essence of the relevant statute was

very thing that lawyers were, until Pepper

Though he retired eighteen months ago, Dr

somewhat different from its wording had, to

and Hart, banned from doing. Its case report

Chris Pond spent 32 years in the House

an extent, become secondary; the primary

notes this absurdity, as highlighted in the

of Commons Library, the body which feeds

issue, for which he, as a constitutional lawyer,

Law Commission of New Zealand Report

much of the data that makes its way on to

had been brought in to debate was whether

from 1990, which was cited: “It is irrational

Justis Parliament.

recourse to transcripts from debates, in order

for the courts to maintain an absolute rule

to iron out ambiguity, was constitutional.

depriving themselves of access to potential

Pond, who for many years has “appreciated

[sic] relevant evidence or information for this

the efficacy of Justis Parliament and JustCite,”

purpose.”

estimates that immediately after the ruling,

In contention was the so-called “Exclusionary

requests for Standing Committee transcripts

Rule”. As stated in the official law report, “Mr Lester did not urge us to abandon the

It must have been quite a task to find all this

exclusionary rule completely.” This was a

collateral.

quadrupled. Though this is good evidence, it’s far from

crucial counterpoint to the detractors’ belief

conclusive.

that it could open the floodgates, meaning

But Lester is a comparative law researcher of

lawyers could potentially waste the courts’

old. He read “textbooks, articles, debates and

time by resorting to legislative history at

other source material,” and he tapped into

But it’s my hunch that with easier access to

every opportunity.

“personal contacts”.

such material, isolated or included alongside

So, when the judges finally found in favour

Though he had access to the technology of

see parliamentary data as little acorns

of Lester’s client, they laid down stringent

the day – “certainly I used a fax machine,

bursting with legal potential.

guidelines for determining whether a statute

as this was before email, to send a fax to

was ambiguous. Whether these explicitly

Kenneth Keith [a renowned judge] in New

And so I close with a metaphor as eloquent

addressed others critics’ concerns, alluded

Zealand,” he says – but it’s clear that to the

and uncontrived as that with which I started.

to by Woolf, that ministers could potentially

likes of Lord Lester, research is rarely much

make self-serving comments, knowing that

of a stumbling block.

cases and legislation, lawyers will gradually

they’d be on-the-record, is moot. But the 30,000-word judgment was fairly watertight.

To those of us less able, innovative research tools can be a boon. As-enacted legislation, a

25

Major changes to pension contributions were announced in this year’s Budget. These changes will mean many barristers will now not receive higher rate tax relief on their pension contributions and will need to seriously reconsider their future financial planning. By Anne Gregory-Jones, partner and Head of tax at Chartered Accountants and tax advisers haysmacintyre

T

he Chancellor announced a restriction on the tax relief for pension contributions for individuals with income of £150,000 per annum or over. The new rules will apply from 6 April 2011 and will reduce the tax relief to basic rate only where income is above £180,000 with a sliding scale for those on income between £150,000 and £180,000. As yet no details are available as to how this will work but consultation is expected in the summer with draft legislation thereafter. In anticipation of this change special “antiforestalling” rules are being introduced immediately to prevent individuals bringing forward their contributions and obtaining relief before it is withdrawn. The anti-forestalling rules apply to anyone whose annual income in 2007/08 exceeded £150,000. Where that applies higher rate relief on pension contributions in the current year 2009/2010 and in 2010/2011 will be restricted to basic rate relief. This restriction does not apply to regular pension contributions; for these purposes regular means those where contributions have been paid quarterly or more frequently and continue to be paid throughout the tax year. Except for regular contributions higher rate tax relief will only be available up to £20,000, the special annual allowance. Anything over and above that will only receive relief at basic rate. The consequences of this is that for the many barristers who pay single contributions each year, they will only receive higher rate relief on pension contributions of £20,000, the special annual allowance. This will have a serious effect on the many barristers whose income exceeds £150,000.

Note that this limit is a total income figure and will include not only earnings but also dividends, interest and rental income etc. Where this does apply it will be important that other tax advantaged investments are considered. Whilst these are few they are now of increasing importance. The annual contribution to an ISA has been increased to £10,200 for those aged over 50 for this year, and to everyone from next year, and of course there is also the tax advantages of Venture Capital Trusts and Enterprise Investment Schemes to consider. Whilst this may signal a significant drop in pension savings, pensions can still be attractive at lower levels. For example if you expect your retirement income to be taxed at 20% it is still very attractive to pay contributions with 20% relief because • 25% of the pension fund can be taken as a tax free lump-sum • the tax deferred is by virtue of the relief • contributions roll-up in pension fund generally free of tax.

It may not however be beneficial to pay contributions that qualify for tax relief at only 20% if the resulting pension will be taxed at 40% or indeed higher if the current proposals for tax rates after April 2010 are introduced. This is clearly not very good news for many barristers but one important point is that where this applies at the very least you should be putting in the £20,000 for both 2009/2010 and 2010/2011 to maximise the reliefs available.


26

the barrister

the barrister

Strands of Evidence For many years now, hair testing has been used as a useful tool within the legal/medico sector to provide crucial evidence of exposure or use and of substances including prescription, over the counter and illegal drugs, but are you making full use of this clever technology? Are you using the right methods and types of analysis? Do you know what is available and how it can help your specific case? What is “Chain of Custody”? Is it legally defensible? Where can I get the best free advice from? What else could I use this technique for? By Matt Taylor, Managing Director of ScreenSafe UK Hair Testing

27

they have robust procedures to ensure this?

first time, then it may need to be done again.

HPLC) coupled to mass spectrometry or

Sample Collection and Chain of Custody

tandem mass spectrometry.

widest range of analyses to meet your/your

It is recommended that persons involved

This process including the issuing of results

client/the court’s specific needs? Do they

in commissioning a hair test appoint an

and expert witness statement usually takes

advise what is available and can they offer

independent sampler to collect and verify

on average about 7-10 working days.

choice?

samples, as it is the best way to ensure Chain

Choice – Can they provide the

Ability - Can they test for the

of Custody (the strict systems and processes

In Conclusion

widest range of substances and not just the

required to guarantee the authenticity of

Hair testing offers a unique window of

“standard panel”? E.g. Most providers state

the sample and it’s analysis). The donor is

detection for substances, drugs and alcohol.

that they test for Benzodiazepines, but they

required to give a hair sample with their

It provides a way for you to look back months

will only test for a small few (the easier ones

consent. This would require a sample of

rather than days (in the case of blood or

to detect) and therefore will miss crucial

hair to be cut from the crown of the head,

urine) to ‘rule in’ or ‘rule out’ drug and

evidence. Do you need to look at ALL of a

called the vertex posterior. Compared with

alcohol use or exposure to a substance in a

specific drug type, not just a limited section

other areas of the head, this area has less

specific case. When used correctly, it can be a

had consumed a drug in excess of the cut-off

applied to any drug or substance. This

of that drug type?

variability in the hair growth rate - the

(for example 50pg/mg) for say two months,

method is particularly important when a

powerful tool to demonstrate patterns of use

Accuracy – Can they deliver highly

number of hairs in the growing phase is

air testing is unique in

but was abstinent for the next four months,

subject is claiming to have been “spiked”

or exposure allowing professionals to make

accurate and reliable results that will stand

more constant. Underarm, chest or leg hair

its ability to look back

it may be reported back as a NEGATIVE (i.e.

(administered a drug or substance without

informed decisions to build and support

up to external scrutiny or challenge? Do they

is also an option if no head hair is available.

months

than

<50pg/mg) when averaged out over the six-

their knowledge) or where a one off use is

their case adding clarity to allegations or

use the latest technology and methods? Do

An A and B sample can be collected if

days at drug and/or

month period i.e. where a 1 x 6 cm sample

declared or assumed.

even assumptions. It can give confidence to

they “lead” or do they “follow”?

required with the B sample being stored

substance use, making

was analysed. In order to obtain a clearer

The process of hair testing has been proven

professionals to make the right decisions at

analyses

securely for a minimum of 12 months. A

it an essential piece

more detailed picture of the levels of the

in a court of law many times and therefore

the right time. There are many applications

sensitive enough to detect drug or substance

sample of approximately 150 hairs (the width

of the jigsaw in child residence, protection

consumption of the drug over time, a head

has grown in popularity because it provides

for this modern technique in all aspects of

use or exposure at ALL levels and not just

of a pen barrel) is required for an average

orders,

hair test should be employed and split into

a complete history of substance, drug (and

law. Its application should be considered in

at the medium-higher levels? E.g. Cannabis

test. It should be noted that accuracy of

segments or sections.

now alcohol) abuse or exposure. Often a

length and how the different techniques can

is difficult to detect at low levels, most

hair analysis is reliant on the weight of the

donor will attend the interview having just

be applied to provide a far more detailed

providers will not inform you of this because

sample. Some companies state that they only

history of use, abuse or exposure than often

H family

and

rather

criminal

cases.

By

providing information on exposure over time, hair analysis can be useful in verifying self-

Sensitivity

Are

the

reported histories of use in any situation in

For example:

shaved his head as a way to avoid detection.

they cannot offer a “low” level cannabis test.

need to take a tiny amount of sample. This is

which a past history use is desired. During

However, under-arm, body (chest, leg etc) or

thought or assumed. It is proven, reliable,

A person drinks in excess of 6.25 units

Will you miss that crucial evidence?

one area where their results are left open to

controlled tests of hair, a drug/substance

pubic hair can be utilised, with each offering

accurate and cost-effective - but only when

of alcohol per day each day over the

they

challenge. The sample is then placed into a

user is not able to hide the fact that they have

a different “window of detection” (how long

done in the correct manner. It is important to

period of July giving a result in hair for

friendly,

quickly

special envelope, signed by the subject and

used drugs. Once ingested, the drug remains

back you can look at). One UK provider can

get the right advice and employ the services

Ethylglucuronide (Alcohol) for the month of

will they respond? Will invoices be sent

sealed by the “Collection Officer” in front

in the hair as a permanent record. Drugs in

even use nail clippings where no hair at all

of the right experts. When you get the best

July of 52pg/mg. In August and September,

on time and will they be correct? Are you

of the subject. This is then put into a larger

the bloodstream get trapped in the hair shaft

is present.

information, it allows you to make the best

the person did not drink any alcohol. 50pg/

kept informed of any changes that may

envelope and sealed to complete the Chain of

as it grows in the root follicle. Since hair is

decisions. It could be the difference between

mg is assumed as the cut-off level for a

happen along the way? Are they available 24

Custody. The form is signed and completed

an inert protein, the drugs remain trapped

placing children in a harmful environment

positive/negative result.

Choosing a provider

hours a day, 365 days per year? Would you

and sent to the laboratory with the sample.

there until the hair is cut. After about 7 days

or one of safety and wellbeing. It may be the

A 1 x 3cm hair analysis would show

When choosing a provider, you should ask

recommend them to peers?

following drug use or exposure, the hair has

NEGATIVE for Ethylglucuronide on average

yourself a number of questions, including:

grown enough to be cropped close to the

Laboratory processes

your case. It could prove or disprove that

over the 3 months (i.e. 52pg/mg divided by 3

Quality – Do they meet the required

what best suits the case and get ongoing

scalp, providing the perfect history of drug or

The samples are checked at the laboratory

someone was indeed “drugged” over time

months = <50pg/mg).

UK, European and Worldwide standards? Do

confidential free expert advice throughout

substance abuse/exposure. On average, hair

to ensure tamper proof seals are not broken

(long or short). Whatever the application, you

However…

they have World leading experts in the team?

the whole process? Can I get Expert Witness

grows at about 1cm per month, so a 3 cm

and then follow an approved and accredited

can guarantee that hair testing techniques

A 3 x 1cm hair analysis would show POSITIVE

Do they deliver the most accurate results

from a world-leading expert? Does their

section gives a three month history of drug

(via audit) process through the laboratory.

will continue to improve the availability of

for Ethylglucuronide on average over the

available to me/the client/the court or are we

report hold substance when challenged? Are

use. If more in-depth detail is required, the

The hair analysis involves many processes

reliable evidence, much as DNA has in recent

month of July, and NEGATIVE on average for

settling for “second best”?

they experienced in high profile cases or

hair can be sectioned into, say, 3 x 1cm to

but below are the main 5 steps:

times.

the month’s of August and September.

will their evidence (written or in person) be

show what has been taken month by month.

Decontamination of the hair

As demonstrated in this example, the same

they promise and will I get my results in

dependable in court?

Similarly this can be done for as long back as

Preparation

3cm sample can be shown as a positive or

time? Can I trust them to “get on with the

the subject’s hair measures.

pulverization, segmentation in short pieces

job” while I get on with mine?

court getting for the money? Is it good use

Author: Matt Taylor, Managing Director of

negative result dependent on the type of

“Chain of Custody” – Do they offer

of public or the client’s funds? Will I get

ScreenSafe UK (World leaders in Hair Testing

analysis used.

sodium hydroxide, buffer

Choosing the correct type of analysis

Therefore, with segmental analysis, more

a flexible (to meet my/my clients’ diary) fully

the specific evidence I need or will it be

The result of any hair test is an average over

accurate patterns of use can be obtained

competent and trained collection service to

ambiguous and therefore open to challenge?

phase, solid phase micro-extraction

the time period tested for. If a subject who

and observed. The same principle can be

meet legally defensible Chain of Custody? Do

If it is done incorrectly or insufficiently the

Reliability – Do they deliver what

Customer

service

professional

and

Are

how

Advice and Support - Can I discuss

Cost – What am I/the client/the

crucial part of evidence that can win or lose

Incubation: Extraction:

of in

the

methanol,

liquid/liquid,

hair: acid,

------------------------------------------------------

services).matt.taylor@screensafeuk.co.uk solid

Analysis: Chromatography (GLC,

www.screensafeuk.co.uk Tel: 08450 50 55 90


28

(2006)

opened their doors to the media; for the High

in children’s cases and/or financial dispute

the Government.

Accordingly, the MoJ

judicial decisions to children who have been

Secondly, there is a lack of clarity about the

advocated media access as of

Court and County Court this has been – to a

resolution (FDR) appointments), nor are

proposes to simplify the legislation “so that it

the subject of decisions in family courts as

extent to which the names of professionals

right;

set

large extent – to harmonise its practice with

the media allowed into hearings under the

is readily accessible and easily understood”

soon as possible after the conclusion of their

and experts contributing to family cases can

The

p.1

29

the barrister

the barrister

first

the

consultation

proposals

there

out were reversed in the second

the Family Proceedings (Magistrates) Court.

Adoption and Children Act 2002 (these

(‘Family Justice in view’).

It is believed

case; and the availability of full transcripts of

or should be reported in the media. These

(2007) consultation; the reversal had been

The reform was achieved by amendments

proceedings are not governed by the FPR

that the Secretary of State will look for

judgments to them on reaching adulthood.

are issues left unresolved by Munby J.’s

particularly informed (it was reported by

made to the Family Proceedings Rules 1991

or FPC(CA)R, but by the Family Procedure

legislative opportunity in the next Parliament

The FJC is anxious to see the launch of

decisions in Re B [2004] and Re Webster

Government) by the nature and strength

by the Family Proceedings (Amendment)

(Adoption) Rules 2005 which have not been

to introduce a consolidating statute.

This

the scheme in the three pilot courts; it is

[2006]. It is not on the face of it a contempt

of the concerns raised by the children who

(No.2) Rules 2009 (SI 2009 No 857) (and for

amended).

would be welcomed by all practitioners in

vital that financial and human resources are

of court to identify a witness in children

had been consulted as part of its process.

the FPC in the Family Proceedings Courts

the field of family law, aswell as those outside

invested in order to allow the scheme to be

proceedings and there is a powerful public

Accordingly, the 2007 Consultation Paper

(Children Act 1989) Rules 1991 (‘FPC(CA)

Other amendments to the 1991 Rules include

(and who wish to report on) it, who need the

properly tested in the pilot.

interest in knowing who the experts are

argued that improving confidence should

R 1991’) by the Family Proceedings Courts

a new regime (Part XI) under which there

clearest guidance about operating within the

be achieved by increasing the information

(Miscellaneous Amendments) Rules 2009, SI

can be more extensive communication of

law.

emanating from family courts. The 2007

2009 No 858).

information from proceedings relating to

Consultation paper predicated that allowing

children to third parties.

whose

theories

and

evidence

underpin

But the FJC continues to have concerns about

judicial decisions which are increasingly

media access to the family courts, and a

coming under critical and sceptical scrutiny

Simultaneous

Will the new rules achieve the combined

weather eye needs to be kept on the scheme

but it is not an exaggeration to observe that

in practice.

some medical experts and social workers

the media in to the family courts as of right

The new legislative scheme can be simply

with these reforms, the MoJ is launching

objectives of promoting confidence and

would not be consistent with the principle

summarised. The new rules (rule 10.28(3))

a pilot scheme in three court centres in

maintaining confidentiality?

that children must come first.

allow a “duly accredited representative of

which anonymised judgments from a range

Justice Council (FJC) has long endorsed

First research needs to be undertaken to

been disproportionately pilloried there (re

news gathering and reporting organisation”

of contested family cases will routinely be

the principle of greater transparency and

monitor the extent to which the presence

B para.129).

Apparently, on receipt of a number of letters

to attend hearings heard in private (the

made available on line.

accountability in the family courts and

of the media in the family courts may

shaming’ of experts is only going adversely to

(200 or so in number, so it is reported) from

accreditation is achieved by membership of

this initiative is to allow a more free flow of

specifically

deter potential applicants from engaging

affect the supply of experts and professionals

“individuals, MPs and constituents around

the UK Press Card Authority); the rules also

information from the Family Courts in the

access to the courts by family members,

with the process.

Respondents to earlier

on whom the court depends to reach its

the country who believe that the family

permit “any other person” (which can of

overall endeavour to promote confidence in

persons requested to attend by the parties,

consultations on this issue highlighted the

difficult decisions: the already inadequate

courts are not being run with the child’s

course in include a non-accredited member

and awareness of the work of the family

and the media. The new rules go further

difficulties of potential litigants from some

number of experts willing to assist the courts

best interests at heart”, the Government

of the media) to be present.

courts.

in allowing media access than the FJC had

BME

in vitally important child protection cases

reversed its position again.

In December

accredited media representative can however

recommended, but the continued widespread

Asian, some African and/or communities

2008, the Lord Chancellor and Secretary of

be excluded on the basis of one of four

If these proposals are designed to achieve

reporting restrictions provide a proper balance

with evangelical or fundamentalist religious

State announced the reforms in his paper

grounds contained in rule 10.28(4): that is to

the ‘confidence’ of the public, how is the

to ensuring appropriate confidentiality. The

beliefs (Association of Lawyers for Children

Thirdly there is a risk that witnesses will

to

not willingly come forward to give evidence

The duly

The purpose of

supports

The Family

judicially

controlled

who have been identified in the media have

communities,

In the foreword

say, (i) where it is necessary in the interests

‘confidentiality’ of the process achieved? The

concerns of the FJC about confidentiality

of the child concerned in or connected

rules relating to the publication and reporting

were informed by its own consultation with

the courts.

In their response to earlier

in family cases if they feel intimidated

said “It is critical that not only do the family

with the proceedings, (ii) for the safety or

of

proceedings

a panel of children and young people as

consultation, Women’s Aid argued that, ‘in

by the media presence; this was a point

courts get the decisions right, but also that

protection of a party, a witness, or person

concerning children has not (yet) changed.

part of its response to the Government’s first

cases where domestic violence is identified as

recognized by the European Court in B v

the public has confidence that they are doing

connected with such a party or witness, (iii)

The enthusiasm of the media for the new

consultation on transparency in 2006. The

an issue such an eventuality creates a further

United Kingdom; P v United Kingdom (Cases

so. In order to have trust in the system,

for the orderly conduct of the proceedings, or

rules has been significantly restrained by

children were clear that they did not want

opportunity for a perpetrator to threaten

36337/97 and 35974/97) [2001] in which it

people need to understand how it works.

(iv) where justice will otherwise be impeded

the continuing, and extensive, prohibition

personal information which could identify

talking to the media to maintain control of a

was said at para.38: “The proceedings which

The challenge we face is to raise public

or prejudiced.

on reporting of family cases. The legislative

them in their communities and schools

victim and will in some cases deter a victim

the present applicants wished to take place

placed in the public domain.

in public concerned the residence of each

Any member of the media

relating

to

seeking

access

might well be even further reduced.

to the document, Rt Hon Jack Straw MP

information

in

South

response,

‘Family Justice in View’.

2006),

particularly

Fear of unfair ‘naming and

understanding of how decisions are made,

must be given an opportunity to make

scheme

This needs

from accessing the family courts’. Litigants

and awareness of the daily duties of those

representations before the decision is made

prohibitions is not a neatly fitting jigsaw of

to be actively monitored, and protected by

may feel inhibited by the social stigmas and

man’s son following the parents’ divorce

working within the family courts to deliver

and brief reasons should be given summarily

matching statutory pieces, creating a well-

future legislation.

shame about the breakdown of the family or

or separation. The Court considers that

the best solution to difficult problems. At the

for the court’s decision.

defined picture. Far from it. It is a hotchpotch

abuse they have suffered, especially victims

such proceedings are prime examples of

same time, we must protect the privacy of

which

contains

the

reporting

of ten free-standing, and in some respects

The FJC has promoted the proposal for

of domestic violence, and in particular

cases where the exclusion of the media and

children and families involved in family court

The new rules do not allow the media to

overlapping,

crafted

publication of judgments in family cases,

those from Black and Asian ethnic minority

public may be justified in order to protect

cases so they are not identified or stigmatised

be present for all types of family hearing.

over the best part of the last 100 years. The

appropriately anonymised, to improve public

communities where shame and ‘honour’ are

the privacy of the child and parties and to

by their community or friends”.

Those hearings from which the media are

protections provided by these statutes are

understanding of how, and why, the family

strong deterrents’. The potential presence of

avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the

statutory

provisions

excluded include hearings at which judicially

cumbersome to identify, and when found,

courts make the difficult decisions that the

the media in the courts may dissuade those

The 2008 proposals became law on 27th April

assisted conciliation or negotiation takes

the protections are neither “comprehensive

law requires of them; it has championed the

from accessing justice.

2009, when the Family Courts (at all tiers)

place (particularly conciliation appointments

or

provision of age-appropriate summaries of

particularly

comprehensible”

admits

advantages and disadvantages of the various


30

the barrister

31

the barrister

on effect of the reduction of that supply.

residence and contact options open to the

only a partial picture by attending family

child, it is essential that the parents and other

hearings, where much of the evidence is

witnesses feel able to express themselves

produced in the written word.

Both of

It is to be hoped that grossly tendentious (and

candidly on highly personal issues without

these aspects of future media access require

often plainly inaccurate) media reports of

fear of public curiosity or comment.” This

careful review.

alleged miscarriages of justice in the family courts will become a thing of the past, when

needs to be monitored. It is vital that the operation of the new

the media see for themselves the painful

Fourthly, there is a risk that delays in the

rules

conscientiously

processes involved in decision-making over

resolution of family cases will be made

monitored before any legislative change in

children of vulnerable &/or broken families,

worse by arguments over media access to

relation to reporting is introduced.

and how the often exquisitely difficult judicial

the hearings. The Practice Direction (20th

MoJ is encouraged to state its commitment

April 2009) exhorts the judiciary to deal

to effective monitoring of the rules before

with the applications “as they arise and

any change to primary legislation, so that the

by way of oral representations”; the PD

confidence of all participants in the family

goes on “where exclusion is proposed any

justice can be developed.

is

effectively

and

The

decisions in the family courts are reached.

Stephen Cobb QC, family law specialist

1“Confidence and Confidentiality: Improving transparency and privacy in family courts”

media representatives who are present are entitled to make representations about that

The family justice system is far from perfect;

[the 2006 Consultation] and “Confidence &

proposal”; “brief reasons” should be stated

the media will see a system under pressure.

Confidentiality: Openness in family courts a

for the decision to exclude the media. The

It will be able to witness the failures of child

new approach” [the 2007 Consultation]

risks of the best-laid plans for the efficient

protection such as those graphically and

case management of complex family hearings

tragically exposed by the death of Baby Peter;

being cast into disarray by contested ‘media

it will be able to survey the diminishing

access’ arguments are all too clear to see.

capacity of the Courts to deal with an ever

While it is desirable that in many public law

Uncertainty Reigns: Contracting out and ‘a term of years certain’ By JS Sidoli del Ceno, Senior Lecturer in Property Law, Birmingham City University

C Introduction

be costly both in terms of time and money

automatically enjoy the protection of Part II.

o m m e r c i a l

and are no means certain to succeed with

practitioners

and

the landlord having to prove his contentions

This

surveyors are familiar

evidentially. Even if the landlord does succeed

required the approval of the court following

with

contracting

joint

out

application

procedure

the

provisions

in regaining possession of the property there

a

of Part II

Landlord

is the distinct possibility of having to pay the

and

and Tenant Act 1954.

former tenant compensation of the rateable

implementation of the Regulatory Reform

Indeed they are one of the longest standing

value of the property or up to twice the

(Business Tenancies) (England and Wales)

and most well-known of all property statutes.

rateable value of the property if the tenant

Order 2003 (SI2003/3096), a new regime

Part II of this Act (sections 24-28) grants

has been in occupation of the premises for

has been in operation. These new procedures

tenants broad security of tenure. Until the

14 years or more.

were designed to be less cumbersome and

tenant

but

from

since

the

initially

2004,

landlord with

the

less formal. They merely require the tenants

Law of Property Act 1969 landlords had no option but to grant this security of tenure to

The Contracting out procedure is only

to sign a ‘health warning’ – with at least

increasing volume of the most serious and

prospective tenants meeting the fairly simple

possible where the lease was granted for a

14 days before the completion of the lease

(care and similar) cases (consistent with the

complex cases in a timely fashion - stretched

requirements that were needed to obtain

“term certain.” This means that for a term

- detailing that they were aware that they

ambition of the Public Law Outline) contested

now to breaking point.

the Act’s protection namely that a lease was

to be certain then the lease in question

were giving up the particular rights of Part II

issues of media access could be determined

itself the spiraling costs of private ancillary

granted for a term of years certain and that

must specify a fixed period. A break clause

of the 1954 Act by agreeing to a contracted

at the Case Management Conference, in

relief proceedings; it will be able to gauge

out lease. If the lease was to be completed

whether the courts are succeeding in truly

it was granted for commercial purposes.

will not affect the certainty of the term as

reality this is unlikely to occur. It remains to be seen what actually happens.

gaining access to the voice of the children

This latter aspect has always been construed

was decided in Metropolitan Police District

less than 14 days after the ‘health warning’

widely and could include charities and other

Receiver v Palacegate Properties [2000] 13

had been served then the tenant had to sign

operations that are not normally deemed

EG 187 where Pill LJ stated unequivocally

a statutory declaration in front of a solicitor

But it

would be far from desirable for the efficient

It may assess for

who are the subjects of the proceedings.

management of a case to be derailed by arguments over media access when witnesses

The media will be able to observe a family

to be business or commercial. Since the

that “the presence of a break clause [did]

or commissioner for oaths. The recent case of

are in attendance at the start of a contested

justice system driven by a dedicated and

1969 Act landlords have had the option of

not prevent the term being a term of years

Newham London Borough Council v Thomas

final hearing.

hard-working cohort of legal practitioners,

‘Contracting out’ of this security of tenure

certain for the purposes of section 38(4) of

Van-Staden [2008] EWCA Civ 1414, [2009]

provision. This provision is very important to

the Act.” However, a clause which extends,

05 EG 108 has, however, radically changed

landlords for without it tenants can remain

or appears to extend, the tenancy beyond

the established view of what constitutes

experts and specialist judges. At a time about

when the Government appears committed

the Government’s intentions in relation

to unpopular reform of the public funding

to adoption proceedings.

Only a hastily

regime for legal representation in family cases

in possession if they so wish after the end of

that of the final date specified, for example,

a term of years certain and is therefore

generated Practice Direction (30th April

(“Family Legal Aid Funding From 2010: A

the contractual term and can through section

“and thereafter by month to month” will

of considerable to those who maintain an

2009) cured a hiatus over media access to

Consultation: Representation, Advocacy and

26 of the 1954 Act apply for a new lease

render the lease uncertain and will thus be

interest in commercial property.

‘placement order’ proceedings.

There is

Experts’ Fees”) the media may, ironically, be

which invariably will have to be granted.

unable to be contracted out. The same is

also uncertainty over the extent to which the

able to assess the adverse impact of those

media will in due course be entitled to see

proposals on the ready supply of experienced

The landlord can regain possession of the

true of periodic tenancies, be they monthly,

Newham LBC v Thomas-Van Staden

documents generated for the proceedings.

lawyers on both sides of the profession to

property on a number of grounds under

quarterly or annually as they clearly cannot

The salient facts of this recently decided case

At the moment, they will necessarily receive

commit to this difficult work, and the knock-

section 30 of the 1954 Act but these can

be for term certain and thus the tenant will

are that Newham London Borough Council

There

remains

some

uncertainty


32

the barrister

the barrister

33

granted the tenant, Thomas Van-Staden, a

The words in parenthesis were defined

City of London Corporation v Fell [1993] 4 All

On a more positive note for landlords there

be concise and precise. As there are already

lease on commercial premises 4 and 4A

by Rimer LJ as “the words of extension”.

ER 968. Following this case, which concerned

remains the distinct possibility that advocates

established norms for dealing with matters of

Rathbone Market for a fixed term from

Newham argued that following the expiry

a tenant’s covenantal liabilities following

will try to distinguish the precise wording

‘holding over’ there is no need to complicate

Julian Sidoli del Ceno

January 2003 to September 2004 at a rent

of the fixed term the appellant stayed in

assignment, holding over or extensions sub-

used in Newham from the wording in their

the lease and risk falling foul of uncertainty.

of the Honourable Society of the Inner Temple,

of £7,500 per annum. Following this period

possession as a tenant on sufferance or, in

clauses became more common in order to

particular lease. A number of commentators,

Importantly, better drafted leases should

Barrister.

the council intended to redevelop the whole

the alternative, under a periodic tenancy

provide that the tenant’s liability (or that

broadly hostile to the decision, have expressed

separate the two concepts of length of term

BA (Lond), MSc, FRAS.

site and therefore would require vacant

upon the same terms and conditions as those

of any guarantor) for a particular property

confidence that this will be the case. Most

from the period of the tenant’s liability. The

possession. Clause one of the lease defined

contained under the original lease. Further,

did not end when the lease came to its

leases, even if conveying a similar idea, will

temporal, contractual term must be fixed but

the term to include “any period of holding

Newham pleaded that the words of extension

contractual end. Newham therefore presents

not use the exact words in Newham. Guy

the ‘term’ of the tenant’s covenantal obligations

over or extension of it whether by statute or

should be disregarded as “meaningless

a new challenge to draftsmen and it will now

Fetherstonhaugh QC writing in the Estates

may, and indeed should, include any period of

at common law or by agreement.” Following

surplusage that, read in the context of the

be interesting to see how they respond to

Gazette (28th February 2009) argues that

holding over. Above all practitioners must now

the pre-2004 procedures a court order

lease as a whole, was inconsistent with

many landlords’ understandable desire to

if the wording differs from that in Newham

take very careful note of the precise wording

was obtained and the lease was excluded

other provisions in it.” Both these arguments

contract out securely. Further, it is likely that

then the landlord “should have little difficulty

of any ‘time’ clause. The law has always hated

from sections 24-28 Landlord and Tenant

were rejected. Rimer LJ stated that the

many hundreds if not thousands of leases,

persuading the court to adopt a different

uncertainty and this case although initially

Act 1954. Following the expiry of the fixed

words of extension were: “plainly included

large numbers of which were entered into a

verdict.”

surprising continues in that long established

term the tenant stayed in possession paying

deliberately; they were intended to achieve a

number of years ago may now fall foul of the

rent albeit irregularly. The council accepted

legal effect and a meaning must be attributed

decision in Newham.

this rent. Newham Borough Council served

to them.” He then concluded that the words

a notice in July 2005 requiring possession

of extension in the 2004 lease defining the

Conclusions and Notes for Practice

with 28 days notice. The tenant did not

term to include any period of holding over or

A tenant protected by Part II of the Landlord

comply and argued that following the expiry

extension created a term that was not for a

and Tenant Act 1954 finds themselves in

of her fixed tenancy she had remained in

term of years certain with section 38(4) and

a much stronger position than otherwise.

possession as a periodic business tenant

therefore the contracting-out procedure was

Conversely, the position of the landlord is

thereby enjoying the protection of the 1954

invalid in its entirety and the appellant had at

weaker. It therefore is imperative for the

Act. At first instance the judge decided that

all times enjoyed security of tenure.

landlord not to inadvertently offer this

the tenant had held over on the terms of

It is a moot point whether the whole lease

protection to the tenant either through

the original lease which excluded security

would be considered invalid on the grounds

bad

of tenure and therefore ordered possession

of uncertainty, for which there is a long list of

management.

accordingly. The court of appeal, however,

authorities, but this was not pleaded and the

advisors should now pay particular attention

allowed the appeal and set aside the original

learned Judge declined to comment.

to a tenant’s continuation of occupation

order. The key to the case was construing the

------------------------------------------------------

vein. When drafting a lease it is better to be laboured than to be imprecise, better still to

drafting

or

through

bad

property

For example, professional

Legal Journals on line • Law & Politics Links • International Law Journals • Research Material •

following the expiry of any fixed term in

meaning of Clause 1 of the lease which read:

The implications

a contracted out tenancy. If the landlord

“from and including [1] January [2003] t0

The implications for this case cannot be

agrees to allow the tenant to remain in

[28 September 2004] (hereinafter called “the

overstated. Firstly, the decision is not being

situ it should ideally only be on the basis

Term” which expression shall include any

challenged and therefore will remain a

of a new contracted out tenancy. Failure to

period of holding over or extension of it

leading authority for some time although

do this might open up the landlord to the

whether by statute or at common law or by

there will clearly be attempts to distinguish

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