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.

Quizzing for Justice 2020

I have to confess to being a collector of useless information. I once spent a long flight home from Los Angeles memorising all of the state capitals of the USA. I think the obsession goes back the days of memorising lists of cases when I was a law student. I am also a fan of the TV show Pointless which probably says something. 

All of which brings me to the Great North West Virtual Legal Quiz.

But first why are we are we doing this?

In normal circumstances we would be planning the Liverpool Legal Walk. This time last year, I was getting ready for the humiliation of a 5k walk in a Liverpool football shirt! That walk raised about £6k to support agencies which provide free legal advice to those in need.

At a time when the need for this advice has never been greater, we are unable to go ahead with the walk before the Autumn. According to the Access to Justice Foundation there as many as 14m people who are living in poverty and unable to obtain legal assistance. Advice is needed across whole areas of law including Welfare Benefits, Employment, Housing and Family Law. Access to legal aid remains limited -

https://atjf.org.uk/

In the momentous case of  Unison v The Lord Chancellor [2017] UKSC 51 (the tribunal fees case)  Lord Reed explained why this is so important –

“Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.

In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade”

I will never cease to argue that full access to justice is achieved by a fully funded legal aid system. But there is little sign of that being a reality any time soon. In the meantime, the need doesn’t go away. So we need to do all we can to support the law centres, advice agencies and other charities who will provide this essential service without charge.

So back to the Great Virtual Legal quiz! Without having to leave to comfort of our laptops we can raise important funds for the Community Justice Fund. This is a joint initiative of a number of agencies including the Access to Justice Foundation, The Legal Education Foundation and others. 

The fund is open to applications now –

https://www.communityjusticefund.org.uk/

The quiz will also be a chance to socialise with others (although it will probably involve more Zooming!).

And you will have the joy of Steve Bamber Cornforth as host!!

You can register here - http://atjf.org.uk/great-legal-quiz

Further instructions will follow as we get nearer the day.

Concerning remote working, Celebrity Squares and hanging files!

The question that many are asking is whether lawyers will ever return to working the way they did before the lockdown. According to a report in Legal Cheek there is a significant majority who want to continue to work at home –

https://www.legalcheek.com/2020/05/over-60-of-legal-staff-want-to-work-from-home-post-lockdown/

Legal work has been moving in this direction for some time. I am old enough to remember the days of a local High Street office where the main source of work was passing trade. If someone came into the office, they would be seen right away because otherwise they would go down the road. These were the days when the local solicitors did a bit of everything from conveyancing to accident claims to divorce.

The world of Google, Social Media and Smartphones has effectively ended that particular world.

I also remember the importance of the paper file. The size of the file grew with the case - some measured their costs by its width. It went everywhere with you. I was once running to a court hearing carrying a large file when a hook that was used to hang it in the cabinet became caught in a woman's crocheted top. The papers went eveywhere. I sheepishly gathered up the papers and then had to ask her to free the file from its embarassing location. Thankfully she had a sense of humour. I was never a fan of paper files after that...

Most lawyers can now login remotely and have immediate access to the matters.

This has all been part of a process that has developed slowly over the years. Then came lockdown which changed everything. 

And then we all discovered Zoom! Is it just me who can't stop thinking about Celebrity Squares!

Many of those who have resisted remote working have had no choice since the lockdown. They now see that it is manageable. They also see the costs benefits in relation to premises and time. I live in the north of Liverpool. For years, the journey to the city centre was a nightmare because of never ending roadworks or crowded trains. When I began working for myself in 2017, I was suddenly liberated. I was actually working during the two hours that I was once commuting.

This was on the agenda long before the lockdown. Office accommodation has always been a major business overhead alongside salaries and indemnity insurance.

Firms have been looking at the cost and flexibility of new ways of working for several years.

https://www.legalcheek.com/2018/04/allen-overy-launches-flexible-working-hub-just-three-miles-from-its-london-hq/

Again, what the crisis has done, is force us to find alternatives. For many that has made a return to the old ways very unappealing. That doesn't mean the end of the office. Face to face meetings will always be needed to some degree. But will it be necessary all of the time?

I would be surprised if we did not see a long-term shift to new ways of working. I also suspect that many young lawyers will now be attracted to the idea of working for themselves as freelancers or sole practitioners.

The PM's speech, a confused message with a hidden sting in the tail

Across England*, many will be scratching their heads and wondering whether they are supposed to be going to work today, or not. Such is the level of uncertainty that has followed the Prime Minister’s broadcast yesterday. So what did he actually say about work. His opening words do not really change anything for some–

“We said that you should work from home if you can, and only go to work if you must..”

That is all he said about those who are working from home. No change. This prompted the CEO of one major solicitors’ firm to email the entire workforce to say –

“Following on from Boris not really saying very much.. nothing changes for us so please don’t worry about whether tomorrow is any different from last week”

It is encouraging to see a business leader taking prompt action to ease the anxiety caused by the speech.

The PM went on –

“We now need to stress that anyone who can’t work from home, for instance those involved in construction or manufacturing should be actively encouraged to go to work.”

I must confess to reading that sentence repeatedly, but was none the wiser. Those who, for the last 8 weeks, have not been able to work from home, fall into one of two groups. They have either been going to work or they have been furloughed.  The PM was clearly not speaking to the group who have been working. This is all about furlough. The message is directed at those who have been furloughed and the message is that you should now go back to work. 

I have had a message this morning from a friend whose partner, a building surveyor  has been instructed back to work today and will be required to go into the houses of complete strangers.

It does seem that the real message here sits behind the words. Furlough has been popular and has probably saved many lives.  But it is also expensive. Have you noticed how the rhetoric around furlough has changed? At first, it was heralded as a way of protecting workers and controlling the coronavirus outbreak. More recently the rhetoric has been about the nation sitting at home watching Netflix. Workers themselves have no control over this. They did not furlough themselves. They cannot unfurlough themselves. 

This seems to be preparing the ground for a gradual ending of the scheme and pressurising employers and workers back to work regardless of safety concerns.

There is no clarity at all for workers who are instructed to return but have genuine safety concerns.

The PM was never enthusiastic about lockdown measures. Right at the start, he talked about “taking it on the chin” and allowing the disease to move through the population. He said that things like closing schools and stopping large gathering don’t work as well as people think. It was the Imperial College report that predicted catastrophic fatalities that changed this. Despite continuing words of caution, the message now seems to be to get back to normal as soon as possible. 

Removal of the words ‘Stay at Home’, will be interpreted by many as a call to get out especially when replaced by the meaningless ‘stay alert’. Many have pointed out the subliminal message behind the new warning signs. The old one was red – Stop. The new one is green – Go. There is nothing wrong with restarting the economy when the time is right. Are we there yet? 

We need a clear response from the Opposition, from unions and from businesses to say lives must come before the economy.

* Other UK countries are maintaining the stay at home message

What have lawyers ever done for us Part 2 - Pro Bono!

I wrote the other day about the important work done by lawyers much of which is overlooked in the face of hostile media coverage and political rhetoric.

In that post I mentioned those lawyers who go the extra mile for clients, who act as a friend and support. This is work for which they rarely receive any payment or public acknowledgement.  

So, let’s look at this in more detail.

My earlier post shared a tweet from a family lawyer about domestic violence. In these cases, the solicitor is often the first person to hear the victim’s story. One firm in Wales has developed a link with a local charity to offer free advice and help to victims –

https://www.southwalesargus.co.uk/news/18424204.law-firm-teams-womens-aid-charity-offer-free-help-victims-domestic-abuse-pandemic-lockdown/

This is just one example of many such schemes that are helped by unpaid lawyers.

Law Works is a charity which is dedicated to securing legal help for those who cannot get legal aid and do not have the funds to cover their own legal costs. Their aim is to connect volunteer lawyers with those is need –

https://www.lawworks.org.uk/

Their work is underpinned by a network of lawyers and firms who are willing to work without charge to facilitate access to justice. The technical expression is pro bono! Their website explains -

“While pro bono is not, and should not become, an alternative to legal aid - it makes an important contribution to accessing legal information, advice and representation.”

Most major Solicitors’ firms have a commitment to pro bono work. One example, is major City firm, Allen and Overy whose website says that 52% of their lawyers took part in unpaid work in 2019 with 48,000 unpaid hours recorded.

https://www.allenovery.com/en-gb/global/about_us/corporate_responsibility/pro_bono_and_community

At the other extreme are the Law Centres which survive (many don’t) on a shoestring to fight for justice for the most vulnerable.

Across the country it is estimated that 60% of lawyers do some unpaid work.

The Law Society, working with Law Works, is promoting an initiative to respond to the need for free advice arising because of the coronavirus outbreak –

https://www.lawsociety.org.uk/support-services/coronavirus/coronavirus-covid-19-and-pro-bono/

This is just scratching the surface of the huge amount of unpaid work that layers do. This covers anything from managing complex litigation to advising that an alternative to legal action might be best.

This need is not going to go anywhere whilst legal aid remains so limited. That need is largely met by the dedication of those lawyers, across the profession, who do this unpaid work.

This will be sorely missed if whole sectors of the profession are forced to close.

What have lawyers ever done for us?

If this sector is wiped out, there will be a hole in our justice system that will take a long time to mend.

Two reports in the last few days raise the alarming news of existential threats to whole areas of the legal profession. Last week we read that as many as 70% of young barristers will not survive in practice for more than 6 months. Those who do legally aided work will be the worst hit – 

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

I shared this story on twitter and there was a lot of lively debate. Most of this was supportive. But there were also the predictable negative comments about moaning lawyers and there being far too many of them. Some even suggested that they could go and work for big companies. The idea of an independent bar seemed to some, to be something from a work of fantasy!

Today we read a similarly gloomy story about High Street Solicitors – 

https://www.lawgazette.co.uk/news/many-high-street-law-firms-face-collapse-research-suggests/5104096.article

These smaller firms and sole practitioners face huge difficulties going forwards. As many as 70% could close because of the coronavirus pandemic. It is interesting that the story is picked up by the Daily Mail which has done more than anyone to attack the work done by those who act for ordinary people – 

The media and politicians have all done their bit to create this false image that lawyers are all fat cats who are out to make a fortune at the expense of the beleaguered insurance industry and big business. The reality is that they are dedicated, hard working young professionals who have chosen to work for the rights of ordinary citizens. You would struggle to find a lawyer who acts for victims of medical negligence who has even dreamt of ‘cashing in’ on anything. This is extremely demanding work which can take many years to concluded. Victims face life changing injuries and often need care for life. The same media that attacks the lawyers, also like to call the victims ‘winners’ if they get justice –

https://thestevecornforthblog.blogspot.com/2019/06/medical-negligence-lets-talk-about.html

Most of these solicitors and barristers work on the basis that are paid nothing if they do not get positive result. This is the reality of the other favourite insult – ‘the no win no fee lawyer’ but that is another story! I have never met a lawyer who does this work, who sees it as a quick way to get rich – in fact it is the opposite.

Many lawyers are often the first person to whom a person will speak. This is normally unpaid work but plays a massive role in protecting victims, for example, of domestic violence.  -

'.... a friend as well as a lawyer'

There is a whole sector of the legal profession that is currently at risk of disappearing.

Society needs independent advocates who will represent ordinary people if they are accused of wrongdoing or are victims of negligence. We need solicitors who will work for the rights of victims. We need to change the message. If this sector is wiped out, there will be a hole in our justice system that will take a long time to mend.

It is encouraging that the opposition is raising concerns and making positive suggestions -

https://www.lawgazette.co.uk/news/labour-how-we-must-adapt/5104132.article

We need a sensible debate about securing the foundations of out justice system. Something must be done.