The importance of litigating and sleeping - but not at the same time!

Anyone who had read this blog over the last few years will know that I have ranted more about Access to Justice than anything else. And the broken record will show no sign of stopping soon. But there is something else that is almost of equal importance. This is the increasing issue of well being for lawyers.

I presented a training course in London in January which was all about Risk Management in Personal Injury work. I decided to subtitle it – 'How to Pursue Personal Injury Claims and sleep soundly at night'. I think one driver for me is that I can look back on nearly 40 years in practice which included nights of wasted worry. Why wasted? Because I am still here, the world is still turning and many of the ‘disasters’ are now anecdotes! In one sense this is something that affects all busy professionals. A colleague once ran a work-related stress case for a lawyer. One of their complaints was that they woke up at 6.00am thinking about files. Welcome to our world.

But, for some, it goes beyond the rough and tumble of work. It can be catastrophic. This week, we have had the sad story of Catherine Sandbach, one which is all too familiar. She has been struck off for dishonesty after admitting that she misled clients about the progress of matters, including referencing court proceedings which had not been issued. In mitigation she said that she was suffering from stress. She had a large case load and was expected to deal with matters beyond her experience –

https://www.lawgazette.co.uk/news/dishonest-solicitor-misled-clients-about-case-progress-to-buy-time/5103068.article

This adds to other recent stories where lawyers have faked or backdated documents or lied about actions being progressed. In one of these a Directions Questionnaire was filed 2 days late and the case handler backdated the letter to the court. The frustrating thing about many of these cases are that they concern errors that are quite capable of being resolved. The consequences of concealment or cover up are usually out of all proportion to the original mistake.

In 2018 I posted my 5 point plan to help lawyers sleep at night. I posted it again in 2019. And I make no apology for repeating it in 2020 –

1.     In the famous words of Michael Jackson - You are not alone. Find someone that you can talk to – it is so easy to be isolated in your little cell. Surrounded by files, emails, deadlines, telephone messages, meetings. To get into that mindset that says ‘I have no time to speak to anyone’. You have. And if you haven’t then make it. 20 mins speaking to someone will get you hours of payback in avoiding sleepless nights. It is a truth universally acknowledged that a problem is never anywhere near as bad when you talk to someone about it. Especially someone who has been there, which if we are honest is all of us! Speak to someone. Right away. Turn your computer off and go and do it now.

2.   Be generous in giving files away. That file that you are scared to look at. The one that has been festering by the side of your desk so long that even the spiders won’t go near it. Give it to someone. It won’t go away on its own. If you can’t look at it, find someone who can. Many solicitors have a file swapping arrangement. I’ll give you mine; you give me yours. Don’t hog matters to protect your bills. You can be far more productive by liberating yourself. Don’t be scared of being criticised. You won’t be. You are more likely to be told – ‘Leave it with me and while you’re there can you look at this one of mine.’ 

3.   See the wood for the trees. It is never as bad as you think it is at 3.00am. The world will not end. I’ve been a lawyer since 1^st April 1980. I have had more 3.00am moments than I like to admit – especially in the early days. Guess what? I’m still here. I’m still alive. I have got to an age where I can say. ‘Phew oblivion never happened.’ It was never going to and never will.

4.   If you need to – confess. If you think the worst has happened – you've missed a deadline and can’t think of a way out. Then tell someone. Today’s is just the next in line of those nightmare cases where lawyers have tried to cover up and been struck off because they were scared to own up. No one was ever struck off for admitting a mistake. Partners, supervisors, insurers will never bite your head off for coming clean. And if they do they shouldn’t be in the job. It also means that it is no longer just your problem. Get it out there and do it as soon as possible. The consequences are less scary than you think and much less stressful than waking up at night or even jeopardising your hard-earned career.

5.   Get a life. Don’t get sucked into that bubble where your legal world becomes all consuming. Being a lawyer is what you do. It is not who you are. See your work as part of your life but not everything. Develop interests and friends outside the pressure cooker. I support Everton. That can very stressful and cause sleepless nights. But it is something different. I love music and photography. I also waste far too much time on social media!

But this isn’t enough. In fact, it is meaningless if businesses do not promote openness.

Partners, Managers, Supervisors, must all adopt this statement –

‘No person in my organisation will ever be afraid to tell me that they are worried about work’

Maybe we should all stay back after work and write that line 100 times!

Still ranting after all these years

This is the year that I celebrate (?) 40 years as a Solicitor. It was on 1^st April 1980 that the Master of the Rolls, Lord Denning put his autograph on my admission certificate and declared that I was a fit and proper person. I’m sure that many of my friends would disagree with that view! The Jam were at Number 1 in the Charts with Going Underground which you must admit is quite cool.

After a bit of a false start with a local firm I started my first real job I the Vauxhall Law Centre a few weeks later. Due to a masterstroke of timing this was the day after my wife had delivered our first baby! So, I don’t remember a lot about the first few days. The Law Centre was in an old school building in Sylvester Street just off Scotland Road. The locals were proud to show me that Priscilla White (Cilla!) lived in the house at the top off the road.

At that time the Legal Officer of the National Council For Civil Liberties was a a young solicitor called Harriet Harman. The Journal of Social Welfare Law was edited by Prof. Brenda Hogget (Hale) of Manchester University! I relied heavily on a local young barrister called Mark Hedley - now retired High Court Judge Sir Mark...

I didn’t really have any idea what Access to Justice meant. I went there because it was a good job and, for a newbie, paid relatively well. For the first few months there were two of us, but funding pressures meant that I was soon on my own. The emphasis back then was on housing, housing and more housing. That part of Liverpool had some of the worst conditions in Europe. Shortly before my arrival, the Law Centre had taken the case of Irwin v Liverpool City Council to the House of Lords. This established the landlords’ duty to repair common parts which was included in the Housing Act 1985. 

At least once a week I was at the County Court seeking emergency injunctions against the Local Authority. This led inevitably to a collision with Liverpool City Council who partly funded the project. Some local councillors objected to their paying us to sue them and tried to close the centre. At that time the Law Centre was managed by Liverpool Law Society which was years ahead of its time in promoting justice for all. I remember attending a meeting with councillors. I was a very green solicitor flanked by Tony Ensor (later HHJ Ensor) and David Thomas (later the Financial Ombudsman)!! I felt invincible and we won that particular day, although were limited to a single lawyer.

By this time, I was, and remain, an Access to Justice zealot. But it should be said that for all that we fought and campaigned, it was a comparatively easy ride. We normally managed to secure legal aid in most cases. The joint income from this and from the local authority meant that during my time, we mainly focussed on justice rather than survival.

It is now a different world. The needs haven’t gone away but centres are closing everywhere. Legal Aid has largely disappeared for some work and where it survives its availability is not publicised. Charitable work to raise funds for law and advice centres has never been more important. Pro bono (aka free work) is becoming more and more important. This includes the legal walks and the excellent Pro Bono Publico initiative from the bar –

http://costsbarrister.co.uk/access-to-justice/pro-bono-publico/

I have no plans to retire any time soon. But even when that day comes I will not shut up about this topic!

https://thestevecornforthblog.blogspot.com/2016/09/no-lord-mcnally-i-will-not-shut-up.html

Clipping the wings of the Supreme Court and other Christmas tales

The Government has promised a review of the UK constitution in order to - "restore trust in our institutions and our democracy." According to the BBC this will include steps reduce the power of the Supreme Court. This would, if it wasn’t legal nonsense, be an act of revenge for the decision in September 2019 that Boris Johnson’s unlawful prorogation of Parliament was unlawful.

The BBC report quotes a Whitehall ‘source’ as saying that the plan is to ‘clip the wings’ of the Supreme Court by reinstating its – ‘more modest role - as the appellate committee of the House of Lords.’

https://www.bbc.co.uk/news/uk-politics-50863138

I think another brief history lesson is called for.

The House of Lords has exercised a judicial role since, at least, 1399. This role was formalised in the Jurisdiction Act 1876 when it became the final Appellate Court and the highest court in the land. . All appeals ended there. The House had the final say. The judges were Lords of Appeal in Ordinary and were known as Law Lords, who also had the right to sit in the House itself

UK Courts follow a system of precedent. This means that courts must follow decisions of a higher court. So, the High Court is bound by the Court of Appeal. In most cases the Court of Appeal must follow its own previous decisions. The House of Lords was the only court that could overrule its own earlier decisions. 

http://nuweb2.northumbria.ac.uk/bedemo/sources_of_english_law/page_10.htm

In 2009 The Supreme Court was created by the Constitutional Reform Act 2005. The aim was to separate the judical functions from the legislative. The Law Lords became Supreme Court Judges. Their role was judicial only. They no longer sat in the House of Lords. But apart from that, there was no real change in the role of the court. It remained the final court of appeal. It was the highest court in the land, just like the House of Lords.

All of which begs the question. How does the government or anyone else propose to ‘clip its wings’? Its previous role was far from ‘modest’ as suggested by the BBC report. The judges would presumably become Law Lords again, rather than Supreme Court Judges. In all other respects it would revert to what it was for centuries. It would be supreme rather than Supreme!

It really is nonsense or something worse. 

What it really looks like is an attempt by politicians to exercise control over the judiciary, to eliminate judicial independence.

The report also mentions enhancing the role of the Lord Chancellor who has to swear –

“…that in the office of Lord High Chancellor of Great Britain I will 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 for which I am responsible.”

So will the ‘enhanced’ role involve the removal of that oath? That would surely diminish the role.

Judicial scrutiny of the executive remains a vital constitutional safeguard. It is a safeguard that must stand above political revenge.      

www.stevecornforth.com

Legal Aid - the arguing is over. What now?

So, the General Election frenzy is over – probably for another 5 years.

There will be many questions asked about why those who opposed the government failed so miserably. No doubt we will see many changes over the next few months. But there is one thing we can be certain about; there is not going to be any miraculous return to the halcyon days of legal aid for all. I mentioned in my last blog that Labour’s manifesto gave positive signs. But as Jonathan Freedland wrote over the weekend –

“Labour’s “radical” manifesto of 2019 achieved precisely nothing. Not one proposal will be implemented, not one pound in it will be spent. It is worthless.” 

https://www.theguardian.com/commentisfree/2019/dec/13/corbynism-labour-left-party

I mentioned in my last post, that the Conservative manifesto was silent on access to justice. When legal aid was mentioned in the campaign, the ‘party line’ was the familiar mantra that we had the most expensive legal aid system in Europe! The days of arguing are now gone. We can look forward to at least 5 years of ever reducing, publicly funded access to justice. We must accept that the argument is finished or at least ‘on hold’ for the foreseeable future.

But the problem isn’t going anywhere. People will still need advice on welfare benefits, housing, debt, family problems, immigration. They can no longer expect any significant help from the state. We all have to look at alternatives.

As recently as 2014 I wrote –

‘Why should ordinary people with a genuine case have to find a lawyer who will do it for free? In what other profession would that sort of expectation exist?’

https://thestevecornforthblog.blogspot.com/2014/11/who-needs-legal-aid-when-lawyers-do-it.html

I can now tell you why. Because no one else will, and the need for help is going to grow beyond anything that we could have imagined. 

The legal profession and advice sector have no choice. We must work together to ensure that those in need are not abandoned. In fairness, Pro Bono work has been growing over the last 10 years. In 2014 it accounted for 3% of the turnover of all firms. This has enabled thousands to get legal help. But, earlier in 2019 the Master of the Rolls said that there was only so much that could be done and there was a risk that the sector would be overwhelmed –

https://www.lawgazette.co.uk/news/pro-bono-sector-overwhelmed-after-legal-aid-cuts-cjc/5068761.article

But it has to be done.

Great work is being done by Universities and Colleges who run legal advice clinics. This is a great opportunity for students to experience the real world of legal advice. It has also become an important piece in the legal advice jig saw. I have long argued that this can never replace a properly funded legal aid system. But for the time being at least, we are not going to get one. You can read more about Pro Bono work at  - https://www.lawworks.org.uk/

In the meantime there will still be Law Centres and other agencies which provide free legal advice. Many centres are already struggling. In the absence of any public funding they are going to need help from us all. I am involved in the North West Legal Support Trust – www.nwlst.org.uk which is part of the Access to Justice Foundation – www.atjf.org.uk . The trusts raise funds and provide grants. In 2020 there will be a series of Legal Walks across the UK. Imagine the difference it would make if lawyers and firms committed to walk or support an event.

Our resolution for 2020 must be – what can I or my firm do?

www.stevecornforth.com

Is this a strike off too far?

I have often talked about the catastrophic consequences when a solcitor makes a mistake and then tries to cover it up.

In a very sad case, a solicitor of over 20 years’ experience, and an apparently unblemished career has been struck off for dishonesty. This was despite the fact that nobody had been misled.

Geoffrey Hart acted for a friend of his wife in connection with a Personal Injury Claim. The claim succeeded and she was due to recover £48k after costs were deducted. The client persuaded him to write to her advising different terms. This was to enable her to persuade her ‘controlling’ husband that she had received less. Mr Hart duly wrote two letters. The first advised that she would receive just £30k. The second advised that payment had been made.

The solicitor soon realised the implications of what he had done and told his firm. The letter was recalled. It was never seen by the husband or anybody else. He made to attempt to hide or to justify his actions.

He was reported to the SRA by the firm.

https://www.lawgazette.co.uk/news/pi-solicitor-helped-client-who-wanted-to-hide-damages-from-husband/5102303.article

The case proceeded to the SDT which heard that Mr Hart had been under considerable pressure. His wife had suffered a miscarriage in the past and he knew that they would have difficulties having children going forwards. The client had shared that she had had a similar experience. This had clouded his judgment.

The tribunal found that he had been deliberately dishonest and failed to meet the ‘high standards of the profession’. He did not contest the decision, nor did he argue that his difficulties constituted ‘exceptional circumstances’.

I have to say that this seems to be a very unfortunate outcome. He agreed to write fake letters which were sent to the client, who knew exactly what he was doing. He soon regretted his actions. He was fully open with his firm. The problem was rectified, and no damage was suffered. Notwithstanding this, his career is now finished. What else could he have done?

In fairness, he did not strongly oppose the outcome and you wonder if it would have been different if he had done.

What this does show, is that dishonesty of any sort is likely to lead to a strike off. That will be the case even if the solicitor does all they can to rectify matters and no harm is done. Whatever pressure you might feel under, you just do not go there. It is a red line that cannot be crossed. 

It is also a reminder that you should, if possible, avoid acting for a client where you have any personal connection.

Conservative Manifesto - whatever happened to justice?

We are well and truly into the General Election Campaign season. The major parties traditionally compete for our votes on the basis of – anything you can do; we can do better. That has certainly been the case this time around until we get to the crucial matter of our justice system and in particular, access to justice.

The Labour Party’s proposals have been modest, compared with of the rest of their manifesto, but positive. They have pledged to reinstate legal aid for early advice in key areas such as housing, debt, immigration and family law. They have also promised to develop a network of law centres –

https://www.lawgazette.co.uk/news/labour-reaffirms-legal-aid-pledges-in-election-manifesto/5102259.article

The Conservative Party manifesto, sadly, demonstrates their contempt for our justice system. On legal aid and access to justice there is an almost deafening silence. They promise to get around to it at some point.

On Criminal Justice there is a familiar populism. They promise 20,000 more police officers and a ‘fair justice system’ that stands for the law-abiding majority.  In other words, they will be tough on crime. The problem is that they have no plan at all about how to address our criminal justice system that is in a state of collapse. Defendants, witnesses and victims are waiting years for trial dates. Cases are not adequately prepared because of a lack of resources within the CPS. Every week, courts are sitting empty due to a lack of judges –

https://thestevecornforthblog.blogspot.com/2019/08/justice-on-verge-of-collapse-lets-pile.html

All MPs were sent a free copy of the Secret Barrister’s – Stories of the Law and How it is Broken. Has Mr Johnson read it? If he has read it, has he not understood it? If he has understood it, does he simply not care. Hence the reference to Homer Simpson! Unless these fundamental problems are addressed, then these are empty promises. In fact, they are worse than empty, they are dangerous.

What about Civil Justice. We are going to have a Democracy Commission!! This will look at ‘updating’ the Human Rights Act. This has been a familiar refrain from the Conservative since the Act came into force. Unless they want to take us out of the European Convention on Human Rights, they cannot change it.

https://thestevecornforthblog.blogspot.com/2019/11/there-are-many-areas-of-our-legal.html

There is also the anticipated reaction to the unanimous Supreme Court decision that the PM acted unlawfully when he prorogued parliament. The manifesto promises to ensure that judicial review is not used to conduct politics or create unnecessary delay. This is another way of saying that they will do all they can to ensure that the law is not used to prevent them from doing what they like, when they like!

For those who are interested the whole manifesto is here- 

https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf

And that, as they say is that. The law will become even more broken – possibly beyond repair.

But they will get Brexit done…honest…

The latest round of nonsense about the Human Rights Act

There are many areas of our legal system which are crying out for reform. For starters, there is the almost total collapse of Criminal Justice with hundreds of courts sitting empty due to a shortage of funding. Defendants, witnesses and victims are waiting years for cases to be concluded. The Government’s answer is to pile on even more cases with no additional resources –

https://thestevecornforthblog.blogspot.com/2019/08/justice-on-verge-of-collapse-lets-pile.html

Then there is the increasing scandal of Access to Justice being systematically eroded by cuts in legal aid funding with important areas like Housing Law being described by the Law Society as 'catastrophic’ legal advice deserts.

https://www.lawgazette.co.uk/practice/society-exposes-catastrophic-housing-advice-deserts/5070051.article

As we approach the December election, what does the Government have to say about this? Nothing. But they have dragged up one of their favourite subjects – The Human Rights Act. Today they have pledged to ‘amend’ the Human Acts 1998 to prevent ‘frivolous’ prosecutions of members of the armed forces. They could not be more inaccurate if they tried.

The Human Rights Act 1998 is relatively short. Its purpose was to bring into English Law, the rights enshrined in the European Convention on Human Rights. The UK was the first country to ratify the Convention, in 1951. For those who like history here is a brief lesson –

https://thestevecornforthblog.blogspot.com/2016/06/the-eu-brexit-and-human-rights.html

It did not create any new rights. It gave our courts jurisdiction to hear cases arising from the Convention.

You can’t take away rights contained in the Convention without amending the whole thing. You can’t do that unilaterally! All that you can do is opt out of it altogether. This would isolate us from every nation in Europe apart from Belarus –

http://thestevecornforthblog.blogspot.com/2013/09/human-rights-will-uk-and-belarus-stand.html

In short, it is nothing to do with the Human Rights Act.

The Government say they want to change the Act to prevent prosecutions of soldiers. The decision to prosecute is made by the Crown Prosecution Service. If they think that there are reasonable grounds to bring criminal proceedings, then that is a mater for them. Is the government saying that a member of the armed forces who commits a crime, thought by the CPS to justify prosecution, should be immune?

The reality is that no change in our law is required. There are enough checks and balances to ensure that there are no ‘frivolous’ prosecutions.

This is an unfortunate gimmick to earn tabloid headlines.

There is no attempt at all to address the real problems that are dragging out system into the ground.