Agencies succesfully working together for justice! A good news story for once...

Congratulations and thanks to my friend Allan Salisbury and colleagues at Compassion Acts UK, who manage a Southport Foodbank, for successfully pursuing judicial review proceedings against the DWP in relation to a shocking injustice in the Universal Credit rules.

They were assisting Sharon Pantellerisco who works hard as a care worker. She is paid every 4 weeks (13 times a year). For UC, the DWP assess earnings monthly (12 times a year). The effect of this was that it appeared on the face of it she was not working long enough hours for 11 months of the year but twice as long in the final month. The impact of this was that was losing £463 a month in UC just because of the basis on which she was paid.

https://www.bbc.co.uk/news/uk-england-merseyside-53472675

Compassion Acts UK liaised with the Child Poverty Action Group (CPAG) who agreed to take on her case.

On 20^th July 2020, Mr Justice Garnham ruled that the process was irrational and therefore unlawful. The full judgment can be found here.  

The Queen on the application of Sharon Pantellerisco v DWP [2020] EWHC 1944 (Admin) - - https://www.judiciary.uk/wp-content/uploads/2020/07/R-Pantellerisco-v-SSWP-Final-Approved.pdf

This judgment is now a few weeks old but is a great example of agencies working together to secure justice. A charity that feeds the hungry became aware of a clear injustice. They decided that it was too important to leave unchallenged. They then referred the case to CPAG who have many years’ experience fighting for those who experience poverty. The injustice was rectified.

This is what happens when agencies combine their skills and experience. This emphasises again the importance of places where ordinary people can find effective legal advice and support. As the availability of Legal Aid becomes continues to be a challenge, it is critical that their work is supported.

One example is the Access to Justice Foundation’s – Go Extra Mile Project (https://atjf.org.uk/legal-walks) and the Law Centres Network’s Law For All (https://www.lawcentres.org.uk/policy/news/news/law-for-all-our-new-50th-anniversary-campaign-and-report)

Compassion Acts UK is a small local charity but which has helped to achieve an important outcome for UC claimant. Nothing we do is too small. We can all do something for justice today!

 

Concerning lawyer jokes, hidden messages and unsung heroes

 

Most of the time they are harmless and sometimes even funny.

I remember the first time that I heard a good lawyer insult. I was newly qualified and out on the town with other members of the Liverpool Young Solicitors Group Committee. Yes, there was a distant time when I was eligible! The conversation moved on to public perception of lawyers and someone commented that he had heard someone say that solicitors were like bananas –

‘Yellow, bent and hang round in bunches.’

As a young enthusiastic new boy I was shocked! After all those years of study this was what it had come to! I have been telling that story for 40 years! Being a lawyer and being the but of lawyers jokes go hand in hand –

‘What’s the difference between a lawyer and a jellyfish? One is a spineless, poisonous blob. The other is a form of sea life.’

Most of the time they are harmless and sometimes even funny.

Jonathan Goldsmith has just written in the Law Society’s Gazette about the Prime Minister’s recent comments about Sir Keir Starmer QC –

https://www.lawgazette.co.uk/commentary-and-opinion/on-being-mocked-by-the-prime-minister/5105113.article

‘Repetitions of similar mockery at the highest level in parliament for a prolonged period may have a further impact on how we are seen and trusted nationwide.’

Lawyers can become the dehumanised face of anything that the media or politicians dislike

This is where the jokes hide something more sinister. To undermine the professionalism and independence of lawyers goes beyond a joke – so to speak. Lawyers can become the dehumanised face of anything that the media or politicians dislike. So we hear about ‘ambulance chasers’ and ‘no win no fee lawyers.’ A former PM once said that the country was sick of these ‘left wing, activist, human rights lawyers.’ I have the T Shirt!

April 13^th 2021 is International Be Kind to Lawyers Day.

This is very nice but it also suggests that there are 364 days when it’s ok to be unkind to lawyers!

We do need to change the narrative and begin to celebrate more often, unsung work of lawyers. This includes the hundreds, particularly young barristers, who do legally aided criminal defence work at shockingly low rates of pay. Or what about the staggering amount of free work done across all levels of the profession? For some reason the words ‘pro bono’ don’t tell the full story –

https://thestevecornforthblog.blogspot.com/2020/05/what-have-lawyers-done-for-us-2-pro-bono.html

Then there are those that provide free advice and help through Law Centres – a movement that reached its 50^th birthday this month!

And of course, there are 000s of lawyers across the country who simply go to work – or work from home! – to achieve the best outcome for their clients.

Another memory from my early days was advice from a senior barrister, later a High Court Judge, that fighting for justice was just as much a ‘calling’ as any of the so-called caring professions. That has never left me.

Shemima Begum - a question of fairness and justice

I still remember the sense of horror in 2015 as I followed the news reports of three young, and very vulnerable looking, schoolgirls heading to Syria to join ISIS. I wasn’t the only one who hoped and prayed that something would happen to stop them. It was only ever going to end very badly. Five years on; one is certainly dead, one is missing presumed dead and one has become the most hated person in the country, according to some.

None of this can justify what Shemima Begum did or has since done. She should face justice in this country so that we can discover the truth. There are many politicians and media moguls who are determined to deprive her of justice at all costs.

Last year there was an outcry that she might have the benefit of legal aid, as if popularity was some precondition to fair treatment –

https://thestevecornforthblog.blogspot.com/2019/04/shamina-begum-legal-aid-and-meaning-of.html

This week, we have seen a similar outcry. She wishes to fight the decision to deprive her of UK citizenship. That is a matter to decided by the courts. The Court of Appeal has decided that this can only be dealt with fairly if she is permitted to come to this country –

“I have reached the firm conclusion that given that the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns” Flaux LJ

SHAMIMA BEGUM v SPECIAL IMMIGRATION APPEALS COMMISSION  [2020] EWCA Civ 918

Whatever you think about her and what she has done, this is a justice issue. We have an independent judiciary whose role is to ensure ‘fairness and justice.’ We are told, rightly in many cases, that terrorists are out to attack our values and our ‘way of life’. These are qualities of that life that we treasure and will defend at all costs. Included among these qualities are ‘fairness and justice’. Why do those precious values become irrelevant when applied to someone who is disliked by the press?

The only thing that is ‘political’ about it, is that politicians don’t like it.

The thought that she might get a fair hearing has produced a chilling reaction. The Telegraph has led calls for judges to excluded from ‘political’ decisions.

This is not a political decision. It is a decision about how courts can deal fairly with a difficult issue. The only thing that is ‘political’ about it, is that politicians don’t like it. It is certainly not the first time that this government has tried voiced an intention to control the judiciary –

https://thestevecornforthblog.blogspot.com/2020/02/introducing-our-new-attorney-general.html

The whole point of justice is to do what is right and fair. This is one of our critical values. It is why we have independent judges. It is why the Lord Chancellor swears to – “respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts”

We are in a dangerous place if justice is left in the hands of the media or politicians.

 

 

 

 

Windrush victims - the further scandal of proof

I am currently reading The Windrush Betrayal: Exposing the Hostile Environment by Amelia Gentleman. You don’t need me to tell you that this was one of the greatest scandals of the last 50 years. Ordinary working people who had been in the UK for 40 – 50 years suddenly and inexplicably found themselves in the middle of a nightmare. They were caretakers, ambulance drivers, cleaners, teachers, care workers, nurses. They were parents, grandparents and friends who had lived normal lives like the rest of us. Suddenly their very right to be in this country was denied.

The closest that I have read is Kafka’s The Trial. It starts out as what looks like obvious error of bureaucracy which develops into a terrifying horror story.  The most disturbing common factor across all of the cases is the disbelief. Victims were explaining that they had been here since childhood and were now pensioners, but they were not believed –

“What was particularly upsetting was the unflinching refusal of immigration staff to believe her consistent account that she had been in the UK for a lifetime”

“The word ‘claims’ seems to be an official shorthand indicating: ‘this is what the suspect is saying but we’re not in the least inclined to believe him’.. *

This was a shocking injustice driven by a political obsession with driving down immigration figures.

The extent of the scandal began to come out towards the end of 2017. We all watched in shock as the truth came out. It would be easy to believe that it is all sorted, that the victims have been vindicated and will be properly compensated for all that they have been through.

Sadly, this is not the case. Few victims have received anything. One reason for this is the unreasonable hoops through which they must jump in order to show entitlement. There is 89-page guidance for case workers who assess claims. Any lawyer will tell you that means that is not a simple and user friendly scheme. You can read it here if you want –

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/886371/Windrush-compensation-case-work-guidance-v.4.0ext.pdf

The document hides another scandal of disbelief. Claimants have to prove some of their losses ‘beyond reasonable doubt’. That is the standard of proof required in criminal cases. These are civil claims for damages. In UK law the standard of proof is balance of probabilities i.e what is more likely than not. To prove something ‘beyond reasonable doubt’ is much more of challenge. Page 80 of the guidance mentions the need for a balance of probabilities but goes on –

“This applies across the compensation scheme except for the following claims:

• loss of access to employment: Actual earnings award

• loss of access to health: Reimbursement of private medical fees incurred outside the United Kingdom

• loss of access to health: Reimbursement of private medical fees incurred within the United Kingdom

• loss of access to education: Reimbursement of international student fees

• loss of access to banking:

Reimbursement of direct financial losses In these cases, the claimant must provide clear evidence and you must be satisfied so as to be sure that they meet the requirements for these awards. This means that you must be satisfied beyond reasonable doubt before making an award in these cases.”

This covers the most fundamental impacts of the scandal on the lives of victims.

It aggravates the issue of disbelief. The government is saying to victims – ‘we did not believe your right to be here despite many years of residence, work, paying of tax and national insurance’. When it comes to compensating them for the injustice they are told – 'we still don’t believe you'. You must persuade us 'beyond reasonable doubt'. This is compared with a wealthy business which is claiming millions in a commercial dispute which has to prove its losses on a balance of probabilities.

Immigration expert Colin Yeo has rightly called this ‘cruel and absurd’. 

This scandal cannot be allowed to continue. The government must now show some integrity and ensure that these people are now properly compensated.

I don’t usually promote petitions on here but this deserves action –

https://www.change.org/p/uk-govt-fix-the-windrush-compensation-scheme-now

*Amelia Gentleman, The Windrush Betrayal: Exposing the Hostile Environment – Guardian Faber Publishing (17 Sept 2019)

Since when did 'rough' become an acceptable part of Justice

The words law and justice are normally inseparable. The aim of a legal system is to promote justice. The most familiar image that is associated with our legal system is one of scales of justice. This is, or rather should be, a statement of the obvious. It seems however that costs savings now trump justice in some cases.

This is the disturbing outcome of the recent judgment in A v B which was recently reported in the Law Society Gazette –

https://www.lawgazette.co.uk/law/court-refuses-to-let-claimant-backtrack-on-5k-settlement-mistake/5104476.article

This link includes a reference to the judgment submitted by Crown Office Row Chambers.

https://www.crownofficechambers.com/2020/06/01/when-rough-justice-is-enough-common-law-doctrine-of-mistake-excluded-from-portal-claims/

The facts are very simple. The claim was being pursued via the Claims Portal for low value personal injury claims. The claimant’s solicitors offered £5750.00 and the Defendants responded with a counteroffer of £4000.00. The claimant intended to return with an offer of £5,550.00 but mistakenly typed in £550.00. This was obviously a typo. Nobody would suggest for a minute that it was anything else. The defendants promptly accepted it.

The claimant issued a Part 7 claim. The defendants successfully applied to strike out the claim as it had already been ‘compromised’. The court agreed with the defendants. This follows on from earlier cases which had a similar outcome. The rationale behind the judgments is that the common law doctrine of mistake, however obvious, does not apply to these portal claims because they were part of a self-contained procedural code. In the case of Fitton v Ageas in November 2018 HHJ Parker said –

“The process has the potential to deliver what might be called fairly rough justice on occasion, but generally is a proportionate and cost-effective way to achieve settlement”

Since when did ‘rough justice’ become part of any definition of justice?

The argument is that to allow any doctrine of mistake would result in costly and disproportionate satellite litigation. What costly satellite litigation follows from permitting the correction of an error that would be obvious to a 5 year old?!

Interestingly in A V B the Deputy District Judge observed that the level of the mistake is neither here not there so an offer of £25,000 instead of £25.00 would produce the same result.

At another level is it not a disproportionate sanction to require a solicitor and/or their insurer to pay out £24,975  for a minor typo? At the same time, the insurer who knows very well that the intention is, benefits from a massive windfall.

It is as if law and justice has been replaced by unforgiving bureaucracy.

Surely this should be urgently reviewed by the appeal courts or preferably lead to a change in the rules

.

Lessons from lockdown - finding valuable treasure

One thing that will never be the same after the current lockdown, is my appreciation of nature and the outdoors. I have had an interest in wildlife and nature for a while, especially as my photography skills have grown. But, a bit like work, it has been something that I ‘go to’. So, we travelled across the Atlantic to see sloths in Costa Rica or to the Red Sea to experience Picasso fish. What lockdown has done in unlock, so to speak, the power of the outdoors closer to home – or even at home.

For weeks we kept to our permitted single and local walk a day. We are very lucky to live just a few minutes from Crosby Beach and Marina. Wherever you are, at this time of yea, there is the stunning, background music of the skylarks. You don’t see them until you disturb them, and they leap from the ground. But the sound is everywhere. It is a constant and beautiful accompaniment. And this is how they look on those occasions that you see them –

One lasting effect of a daily walk is that you become friends with the regular visitors. It was so exciting when a pair of black swans turned up and stayed for a week or so. I would look out for them and took bits of food. I even missed then when they left. When they came back last week it felt like a moment from Lassie come home! Sad but true.

All of this has been on my doorstep for over 30 years. But it has taken lockdown to make me see it. Oh, I have ‘seen it’ but not properly! Even the good old mute swans and gulls are somehow different –

Once we were allowed to venture further afield, we did the 5-minute drive (!) to the Leeds and Liverpool Canal at Rimrose Valley. I have never even been there before last week. What an explosion of life –

And what calm serenity –

Even our back garden has produced moments of wonder

The enforced experience of nature can be life changing. Lucy Jones, writing in the Guardian last week said –

“Instead of becoming bored, as I imagined I might, I’ve found that my local natural areas feel like new destinations each day, even by the hour, for nature is in constant flux… now, many of us are spending more time in the natural world than ever before, and our environments may be as new and undiscovered as a holiday destination on the other side of the world.”

https://amp.theguardian.com/commentisfree/2020/may/16/nature-lockdown-summer-holidays

  

I have spent most of the last 40 years travelling to work, working, and then travelling home from work. I would count the days to when I would go somewhere else. Three years ago I began to work from home 2 or 3 days a week and began to see something of what was close to home. But the last 2 months have changed everything.

I am lucky have all of this so close to home – even it if was barely noticed for much of the time. Others do not have the same opportunities.

Lucy Jones writes –

“The evidence that contact with nature – even a view out of a window – can enhance healing continues to grow. Nature might even be a balm for those dealing with loss and loneliness.”  

Wherever we are, we can find some doorway to the life that is all around us.

There is a lot of talk around how the world will be different when we get back to ‘normal’. It will be a new normal. If that becomes a place where we can appreciate what has always been around us then that will be a better place for us, for those around us and ultimately for the planet itself.

And it helps us to value things differently. Most of us lives lives in which, to some degree our value is measured against what we do. My black swans became valuable, not because of anything they did, but because of who they were. Get it?

“People where you live, the little prince said, grow five thousand roses in one garden... Yet they don't find what they're looking for... And yet what they're looking for could be found in a single rose.” The Little Prince (Antoine de Saint Exupery)

Advices on quantum and further avoidable pressure on the junior bar

The Supreme Court has refused permission to appeal in the case of Aldred v Cham which concerns the costs of obtaining counsel’s advice in a case where a child is involved, and the approval of the court is required.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1780.html

This is a very familiar situation. The child claimant suffers an injury. The family instruct solicitors who successfully pursue a claim for damages. In most cases the approval of the court is required. CPR 21.10 says –

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

In these circumstances an advice on quantum will be needed from counsel or a solicitor. The cost of that advice was in the past, routinely recovered from the third party. But that was before the days of fixed costs. The right to recover costs and disbursements in such cases is limited to what is provided for in the rules. CPR 45.29I(2)(h) permits the recovery of –

any other disbursement reasonably incurred due to a particular feature of the dispute.

This phrase is at the heart of the Court of Appeal decision in Aldred v Chan. Is the need for advice a ‘particular feature of the dispute’? Coulson LJ relied on the decision of HHJ Graham Wood QC in Olesiej v Maple Industries which concerned a related argument over the recovery of translators fees. In that case, the claimant spoke little English. Judge Wood found that the need for this expense did not arise from a ‘particular feature of the dispute’.

“It seems to me that it arises out of a characteristic of the Claimant and not out of a particular feature of the dispute.”

In the same way, the need for advice arises because the claimant is a child and not because of a feature of the dispute –

“The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.” Coulson LJ

I actually think there is an arguable difference between the two. A claim for a child requires approval of the court pursuant to the rules. That requirement is surely a feature of the dispute i.e. it is one which will need to court's approval prior to settlement. But the position as we speak is that the costs cannot be recovered. The Supreme Court has refused permission to appeal because it does not raise a point of law of general public importance. They have however suggested that the rules committee might want to look at it.

There is surely a strong case for this to be a recoverable cost. Firstly because of the need for approval. But also but because it funnels further work away from the junior bar. Solicitors are not going to incur an expense that depresses their own recoverable costs. Many solicitors are able to provide these advices. I have done hundreds. But many do not want to. They should have the option of getting counsel’s advice where necessary. Equally the junior bar is under unique pressure especially at the moment.

https://www.legalcheek.com/2020/04/research-over-70-of-young-barristers-wont-survive-six-months-in-practice/

Any reform of the rules that removes this deterrent must be welcome.