Seven Penalty Points can bar you from the Bench!

I have a confession to make! There have been two occasions during my driving career when I have hovered on 9 penalty points. Until they dropped off my licence; I was the most careful driver imaginable, much to the annoyance of the lines of traffic that often gathered behind me.

On one occasion I picked up 6 points in one trip. I was heading to a meeting in Burnley in very poor weather. I did not notice the speed camera that caught me doing 35 mph in the 30 mph zone. Much to my annoyance and to the amusement of my friends, I was caught by the same cameras as I headed in the opposite direction on my way home.

I am now safely on 3 points and hope to stay there.

Little did I know when I was happily driving through Burnley that I was jeopardising any potential judicial career. On the way into the town I was a fit and proper person to be a judge. By the time I left I wasn’t.

This was the unfortunate experience of Welsh Solicitor Graham Jones who was refused a Full Time job as a District Judge because he had 7 points on his licence! He was described as an outstanding candidate and would have got the job but for the points. He took Judicial Review proceedings against the JAC which have been dismissed. Leveson LJ said –

“In my judgment, the JAC is entitled to take the view that public confidence in the standards of the judiciary would not be maintained if persons who are appointed to judicial office have committed motoring offences resulting in penalty points at the level identified in the guideline within four years of their appointment.”

http://www.litigationfutures.com/news/solicitor-denied-judicial-appointment-points-driving-licence-loses-jr

Apparently he is still a fit and proper person to continue to sit as a Deputy DJ and has been encourage to apply again, when the points have gone from his licence. If I was him I would tell them where to put their advice. Is it just me or does this just show a complete disengagement from the real world. If he is a good and competent judge why should be debarred from a judicial career because he might have missed a speed camera. And why should he be any more or less acceptable once the points have gone.

The confessions I just made will no doubt bar me for ever. I haven’t even mentioned the two fines I picked up during an epic drive through Queensland last year.  And I was so looking forward to spending the rest of my days striking out claims where lawyers made marginal errors!

The lesson is this. If you have any ambitions to be a judge drive carefully. Or at the very least choose the option of a speed awareness course – it could be a decision that saves your career.

www.eadsolicitors.co.uk

Stobart Barristers run out of gas

Much has been said, and written, about Alternative Business Structures and how they would change the world as we know it. The message was that major national brands such as Tesco’s would take over the provision of legal services and the days of the traditional law firm were numbered. As it was, Tesco’s showed no particular appetite.

One business which did go for legal work in a big way was Eddie Stobart, with their launch of Stobart Barristers,. This was a surprising move which I wrote about way back in June 2012 –

http://thestevecornforthblog.blogspot.co.uk/2012/06/eddie-sobart-jumping-on-legal-bandwagon.html

The question I raised back then was how they would bridge gap between the public perception of them at truckers and their ambition to be serious players in the legal market-place. They went for it in a big way. I attended a Legal Futures conference at which Trevor Howarth, then legal director, told us that High Street Firms were effectively finished and this was the model for the future. The name and clout of Eddie Stobart meant that he could provide legal advice from one of his barristers more quickly and cheaply than any of us could achieve. He was a good speaker and it was all quite convincing and worrying.

They caused controversy in 2013 with plans to bid for criminal legal aid work –

http://thestevecornforthblog.blogspot.co.uk/2013/05/fast-eddie-turns-to-crime.html

But it has now all come grinding to a halt like truck that has run out of fuel. Last week, they announced that they were no longer offering legal services to the public –

http://www.legalfutures.co.uk/latest-news/exclusive-stobart-barristers-reaches-end-road

Mr Howarth explained that the decision was due to regulatory changes that meant that direct access barristers would now have to take greater responsibility for issues such as client care. That is a very telling statement. You can have the most well known name on UK motorways but if you cannot look after you clients you should not be in this market. Mr. Howarth has now left to set up a new business called One Legal.

So what now for the famed but mythical Tesco-Law? Co-operative Legal Services hardly set the world on fire –

http://www.lawgazette.co.uk/practice/exclusive-co-op-legal-to-axe-60-pi-jobs/5038856.article

The legal market might have appeared attractive. But it is a tough world which gets tougher by the day. ABS are here to stay and do provided commercial flexibility for many firms.

But does all of this mean that well known brands will stick to what they do best? 

Time will tell, but I think the cataclysmic changes that many predicted are still some distance away.

www.eadsolicitors.co.uk

Concerning Eurovision, the Matrix, Grayling and suspended reality

Tonight in one of those nights that I look forward to all year, but which also sees most of my friends and family smile patiently, or exit the room. Yes it is Eurovision.  And this promises to be particularly entertaining with its mix of buxom Polish women doing the laundry, a trampoline act and a bearded lady from Austria who does in fact have a spectacularly good voice! Those who have deserted me will normally rejoin me for the voting when various geographical groupings will give top marks to their mates and the UK will finish near the bottom as we don’t have any mates in Europe…

Eurovision is one of those moments when reality is suspended. Accepted norms of musical taste and cultural respectability are nowhere to be seen.

Which is a bit like the Matrix in which those things which are accepted as reality are virtual creations of a complex computer. We are drawn into that fascinating conundrum about what is fake and what is real life.

So where lies the tenuous link with our justice system? It is all to do with the erasing of reality as we have known it. It all began when we got the first non lawyer Lord Chancellor since the 17^th Century. Now it might sound like professional snobbery to say that only lawyers can run the legal system. But it has led to a fundamental shift in the government’s perception of justice. For example Mr. Grayling wishes to severely curtail the rights of citizens to take actions for Judicial Review of political decisions. The Parliamentary Committee on Human Rights has recently attacked these moves and also questioned the concept of having a Minister with a purely political agenda in charge of the courts –

"There needs to be a complete review of the implications of combining in one person these roles, and of the current structure of departmental responsibilities between the Home Office and the Ministry of Justice," 

http://www.politics.co.uk/news/2014/04/30/parliament-unites-against-grayling-s-assault-on-justice

But this new reality is not limited to this. It is sweeping across the justice system like Genghis Khan. As Access to Justice has been virtually wiped out we are seeing the courts grinding to a halt as litigants in person try to negotiate the maze that many of us have navigated for years. One Court of Appeal Judge recently summed this up –

‘This case is illustrative of an increasing problem faced by this court. More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear. The court office finds itself having to attempt to make sure that the parties to the litigation are notified of the appeal because litigants in person do not always know who should be served; the only respondent named by M here was LA. The bundles that the court requires in order to determine the appeal are often not provided by the litigant, or are incomplete, and proper papers have to be assembled by the court, not infrequently at the request of the judges allocated to hear the case when they embark upon their preparation for the hearing just days before it is due to start. The grounds of appeal that can properly be advanced have to be identified by the judge hearing the permission application and the arguments in support of them may have to be pinpointed by the court hearing the appeal.’ Lady Justice Black. 

Mike Williamson says more about this at –

http://legalchap.blogspot.co.uk/2014/05/own-goals.html

Only last week we saw a major fraud trial halted because Grayling cuts to Legal Aid meant that there was nobody to represent the Defendants –

http://thestevecornforthblog.blogspot.co.uk/2014/05/cameron-gets-trial-halted-due-to-legal.html

But in fairness to Mr. Grayling he is not wiping out reality single handed. We have court rules that refer to ‘Relief from Sanctions,’ but which now mean the opposite. That phrase now fills litigators with fear as they know that the true meaning is closer to relief from constipation. Only alien abduction is likely to justify a one day's delay in lodging a document or worse still paying a fee.

And then on top of that the fees charged by the civil courts have just gone up by 80% because justice now has to be managed at a profit.

So you see; Eurovision, the Matrix and Civil Justice are not so far apart. And while we are at it let’s throw in a bit of Star Trek –

“It’s life Jim, but not as we know it’

www.eadsolicitors.co.uk

Cameron gets trial halted due to Legal Aid cuts

One of the main concerns raised following the cuts to Legal aid has been that parties in both criminal and civil proceedings will end up having to represent themselves in court. The impact of this is already being felt across the courts system.

Family Courts are reporting a steep rise in the umbers who are representing themselves.

http://www.ft.com/cms/s/0/2d77bea6-c951-11e3-99cc-00144feabdc0.html#axzz30T2uNJUt

This in turn leads to long delays. Most lawyers and judges agree that a case involving Litigants in Person will normally take twice the time of one where the parties have lawyers. It can also lead to outrageous consequences for those parties. One victim of rape was recently, on the verge of being cross-examined by her attacker who did not have legal aid. Legal Aid was only granted following the threat of Judicial Review Proceedings against the Legal Aid Agency.

http://www.lawgazette.co.uk/law/legal-aid-ruling-saves-rape-victim-from-court-trauma/5040839.article

But the most embarrassing moment for the government has to be the Crown Court decision in Southwark today. This was a major fraud trial involving eight defendants. Due to the recent cuts in Legal Aid the Defendants were unable to get suitable legal representation for their Trial. It was argued, on their behalf that they would not get a fair trial. The Judge agreed and halted the Trial. He accepted that substantial efforts had been made to find a barrister to represent them. He said that it would be a violation of the legal process if they had to represent themselves.

To deprive someone of legal representation is indeed a violation of our rights as citizens. 

What is embarrassing for the Ministry of Justice is that the application to halt the trial was made by Alex Cameron QC – the brother of our own PM, who was acting free of charge. He told the court –

"The state has failed to provide adequate representation to allow the trial to take place…a stay is exceptional, but so is lack of representation in this country. We are worried about a fair trial. It's not the fault of the FCA but we do [blame] the state more widely."

Will these words of reason from a source close to home lead to a change of heart by the government?

Who knows? But it certainly raises a further question mark over the future of Minister of Justice Chris Grayling who has simply got it wrong and refuses to admit it. 

Maybe another member of the Cameron family will decide that enough is enough.

www.eadsolicitors.co.uk

Saving Justice - The Book

When I first began this blog, idea was simply to talk about legal matters and to make them more accessible to non lawyers. That is still the idea. But over the last couple of years the one theme that has dominated the agenda has been access to justice. I have written more posts on this subject than most others put together.

And I am not alone.

In this book Patrick Torsney has gathered together the thoughts of 58 bloggers, including yours truly (!). It is available for free download in iTunes at

https://itunes.apple.com/WebObjects/MZStore.woa/wa/viewBook?id=861296492

and on Amazon at

http://www.amazon.co.uk/Saving-Justice-Patrick-Torsney-ebook/dp/B00JTEFF0I/ref=sr_1_1?ie=UTF8&qid=1398075514&sr=8-1&keywords=patrick+torsney

I would normally hesitate to use this blog to promote a book in which I appear but the issues that are raised cannot be ignored and mine is just one voice among many.

Across all of the blogs runs a theme of almost systematic dismantling of justice for ordinary people. That was the title of my own first comments on the subject.

http://thestevecornforthblog.blogspot.co.uk/2012/05/dismantling-of-justice-for-ordinary.html

The book goes far wider than my own area of civil justice.

We open with Gemma Blythe's thoughts on the Criminal Justice System. We end with @jaimerh354 who blogs as A view from the North . Both remind us of the fundamental importance of justice to us all. Gemma calls it the cotton that binds the fabric of our society together. A view from the North closes by warning of a Ministry of Justice which wants to build brand new conservatories on a house which is crumbling. Both make for powerful reading and they are just two among many.

In between we hear the thoughts and concerns of lawyers, academics, politicians, journalists and many others on the dangers of turning the our nation into a justice waste-land where the government knows the price of everything, the value of nothing

http://crimsolicitor.wordpress.com/2013/04/23/the-price-of-everything-the-value-of-nothing/

One thing will be immediately clear. This is nothing to do with lawyers complaining about loss of business. That is a myth put out by ministers to divert attention from the real issues. These are well argued and well researched thoughts from  those on the front line who are genuinely and passionately concerned about justice for all.

Neither is this a book by lawyers for lawyers.

As we approach an election it raises issues of massive importance, issues that should be addressed by any politician who expects to get the votes of ordinary people.

Congratulations to Patrick for the staggering work he has done collating such a powerful set of rants!

If you read never read a book on law again, read this!

www.eadsolicitors.co.uk

Collapsing confidence in our civil justice system?

The shambolic state of our civil justice system following the infamous Mitchell decision has been highlighted by some powerful voices this week. 

Rod Evans, Past President of the Forum of Insurance Lawyers has echoed the thoughts of many, saying ‘we haven’t got a clue what we are doing’. Such is the level of uncertainty and fear felt from litigators on all sides. Speaking at the Westminster Legal Policy Forum he talked about ‘trip-wire’ litigation where the punishment does not fit the crime.

Now any reader of this blog will know that I am no fan of the insurance industry. But Rod Evans is absolutely right. There is now a culture of fear affecting claimants and defendants. The main cause of the fear is uncertainty. We just do not know when we might find ourselves struck out and facing a negligence claim for the most minor of errors. One extreme example is found in the standard multi-track directions which provide for deliver of a Trial Bundle – ‘not more than 7 and not less than 3 days before Trial.’ I know experienced litigators who have lost sleep through fear of delivering their bundle too early! Who is to say that is an unreasonable fear?

http://www.solicitorsjournal.com/news/litigation/costs/we-havent-got-clue-what-were-doing-after-mitchell-former-foil-president-says?utm_source=emarsys&utm_medium=email&utm_campaign=Solicitors+Journal+Midweek+-+April+9th+2014-&utm_content=

In the Mitchell case, the sanction imposed was to penalise the offending lawyers’ by restricting their entitlement to costs. The claim itself was not struck out. But the courts are routinely striking out entire claims, often where there is no sanction within an order or the rules.

This uncertainty is also making it virtually impossible for the parties to litigate in a spirit of co-operation. That is the point made by the London Litigators Association. They recently polled their membership. One response said –

 “There is a lack of co-operation amongst solicitors to sensibly extending deadlines, as it is seen as a chance to get your opponent possibly struck out. Hence, there is more game playing than sensible co-operation.”

Indeed, if there is a chance of getting your opponent struck out for a minor technicality you might owe it your client to be merciless, especially if you do not have a particularly strong case.

http://www.litigationfutures.com/news/litigators-join-voices-lamenting-post-mitchell-game-playing

Against this background of chaos we are being told that court fees are going through the roof –

http://thestevecornforthblog.blogspot.co.uk/2014/04/justice-at-price-what-price.html

We are at risk of creating a civil justice system that is a laughing stock. This is leading to an alarming lack of confidence. There is already talk of leading litigation firms side stepping the courts and setting up their own arbitration schemes.

Maybe this is what the MOJ want. It would certainly save money if lawyers stopped using the courts to resolve civil disputes. But it is a sad day for us all if this happens – not least for the less wealthy litigants who can’t afford to use their own private arbitrators.

We need somebody to say enough is enough. We need some clear guidance from the Court of Appeal or the rules committee so that we have at least a glimmer of clarity.

www.eadsolicitors.co.uk

Justice at a price? What price?

On 22^nd April we are to see a massive increase in fees payable by the parties in civil litigation cases. The levels of the increases are unprecedented and demonstrate the government’s contempt for civil justice.

So to commence a claim for damages between £5,000 and £15,000 the fee is £445, compared to the present fee of £245. In bigger cases the fees rise on a scale up to an eye watering £1920. The thinking behind the rise is to make the justice system become a profitable venture which is ultimately free from public finding. Justifying the rises, Shailesh Vara said –

“I am satisfied that we must press ahead. No one could seriously argue that it is right for the taxpayer to continue to subsidise those who use the courts, by underwriting, year after year, unplanned deficits in court income. We need to get on top of this problem once and for all.”

This is a staggering dismissal of the reasons we have a justice system. In any civilised society citizens should have equal access to justice regardless of whether they are wealthy. Fees of this nature will deter litigants. I hear some say that the fees will be paid up front by the lawyers so there is no real cost to the ordinary person. Lawyers will indeed help litigants but in the face of massive cuts over the last year or so most firms do not have the resources to bank roll fees like these. Clients can take out loan agreements and may recover the interest if they win. But why should they go into debt just to get access to the courts?

The reality is that we will see a big drop in the numbers of those who have funds to litigate. We have already seen this happen in Employment Tribunals. In 2013 fees were introduced for the first time, meaning that it can cost over £1,000 to take a claim to a hearing. The result has been a staggering 79% drop in the numbers of claims –

http://www.lawgazette.co.uk/law/fee-deterrent-sends-employment-claims-plummeting/5040343.article

Most of those will be genuine victims who simply cannot afford justice.

We have also seen the very frightening spectre of similar fees for the poor and disabled who wish to appeal to Benefit Tribunals – most of which succeed –

http://thestevecornforthblog.blogspot.co.uk/2014/03/fees-for-benefits-appeals-can-we-get.html

We have a government which sees the price of justice but which has lost all sight of its value.

Justice is not commodity it is a right.

We’re coming to that time when various political parties come out with promises, in order to secure our votes. 

Will we see promises to reverse these and other attacks on the rights of ordinary people?

www.eadsolicitors.co.uk