septembre 2016

MoJ ‘spending millions’ to cope with LiPs

vendredi 30 septembre 2016

The Ministry of Justice has insisted it is working hard to deal with the stresses inflicted on the justice system by increasing numbers of litigants in person.

Government statistics published yesterday revealed the proportion of family court cases with neither side represented was 34% – the highest since legal aid was taken out of scope in many cases in 2013.

The MoJ says funding and support is being made available to deal with people entering the court system on their own – and efforts are being redoubled to keep them out of court in the first place.

A spokesman told the Gazette: ‘We want disputes resolved away from court wherever possible, using approaches like mediation which can be less stressful, quicker and cheaper.

‘It’s long been the case that some people represent themselves in court, but we want to further increase the support available.

‘That is why we are working to provide more advice in person, as well as improved online information, court guides and videos on how to represent yourself in court.’

The MoJ says it has spent £3.45m in the last two years on increased support for litigants in person, led by the advice, voluntary and pro bono sectors.

There are now 17 personal support units based in 13 cities, with the LawWorks Clinics Network opening more outlets to increase the supply of initial legal advice, working with local practitioners and law schools.

The Gazette understands a new service will open next week at the Royal Courts of Justice, with Citizens Advice set to be present there twice a week.

The MoJ says the legal representation status referenced in the statistics reflects whether the applicant or respondent’s representative has been recorded or left blank in the family court case management system.

It is possible, therefore, that those listed as without representation are not necessarily self-representing litigants in person.

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MoJ ‘spending millions’ to cope with LiPs

IPO hints at extension of design infringement laws

A law that saw the introduction of a criminal offence and possible 10-year prison sentence for the infringement of a registered design could be extended to unregistered designs, the UK’s Intellectual Property Office has suggested.

In its annual IP Crime Report, published on 27 September, the IPO said fewer cases of design infringement had been reported since the Intellectual Property Act was introduced in 2014.

‘If this is true, extending criminal provisions to cover unregistered designs may also have a significant, positive impact,’ the report added.

The 2014 act was introduced after a report by Professor Ian Hargreaves in 2011 said the UK’s IP regime needed updating.

The latest IP crime report, which gave details about IP crime and enforcement across the UK, also showed that during a three-month period last year 28% of 2,060 adults questioned for a survey admitted that their music downloads came from illegal sources.

Similarly, 23% of films, 22% of software, 16% of TV shows and 15% of games were also downloaded in breach of copyright, the report found.

According to the Ministry of Justice, 490 people were found guilty of offences under the Trade Marks Act and 69 under the Copyright, Designs and Patents Act during 2015, a slight increase compared with, respectively, 456 and 61 in 2014.

Despite the slight rise in figures, the report said cooperation between companies and agencies was increasing.

‘For example, the British Phonographic Industry submitted 100 million URLS to Google and Bing for removal. The Police IP Crime Unit, since its launch, has overseen 79 investigations, arrested 69 individuals for fraud, copyright, counterfeiting and cyber-enabled offences,’ the report said.

Baroness Lucy Neville-Rolfe, the IP minister said: ‘There is no doubt that our rights holders face relentless infringement on an enormous scale. However, it is also a fact that we are responding to this threat in ever-more collaborative and co-ordinated ways’.

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IPO hints at extension of design infringement laws

Action against solicitors ‘regrettable’, says judge

A judge has criticised a claimant for alleging that the solicitors representing her family in a long-running inheritance dispute caused stress and inconvenience, telling her ‘this was not a holiday contract’.

In a judgment handed down at the Queen’s Bench Division at the High Court, Mrs Justice McGowan said Gonul Guney, the daughter of millionaire businessman Ramadan Guney, had brought a ‘regrettable’ and costly claim against London firm Kingsley Napley.

Ramadan Guney, the owner of Brookwood Cemetery in Surrey, the largest in the UK, died in 2006. Guney was married to Suheyla Guney but she died in 1992. The pair had six children, including Gonul.

In 2012, after a long legal dispute, ownership of the cemetery and another property, was awarded to Ramadan's former partner Diane Holliday.

In the current claim, initially filed in 2014, Gonul Guney, who according to the judgment is also a solicitor, said Kingsley Napley should be held accountable for her loss of inheritance. The case is expected to go to trial in January next year; the current dispute centred on claims that will form part of that trial.

In Gonul Guney v Kingsley Napley and Another, Guney claimed that, had she been properly advised, she would have been able to properly settle the claim at a ‘much earlier date’. She added that she should be due damages for losses and for stress and inconvenience.

Kingsley Napley sought summary judgment on the monetary claims and called for the claims surrounding stress and inconvenience to be struck out.

In a judgment handed down on 28 September, Mrs Justice McGowan said there were ‘no reasonable grounds for bringing the claims’.

On the alleged cause of ‘stress and inconvenience’, McGowan added: ‘This was not a contract for the provision of a holiday, a pleasurable activity relaxation or peace of mind. This was a contract to act in relation to a family dispute.’

She added that it was ‘too remote’ to say that solicitors conducting litigation ‘assume liability for the stresses that that imposes on the litigants involved’.

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Action against solicitors ‘regrettable’, says judge

PwC integrates legal arm with UK business to launch MDP

‘Big four’ accountancy behemoth PwC will fully integrate its national legal arm into the UK business on 1 October, to become a fully fledged multidisciplinary practice.

The move, announced this morning, carries the stamp of approval of the Solicitors Regulation Authority, which hailed the development as evidence of ‘how modern regulation can work to support innovation’.

PwC Legal senior partner Shirley Brookes told a conference last month that the legal sector could soon be dominated by MDPs, which she said have ‘more to offer’ than traditional law firms. Revenue at PwC’s legal arm jumped from £48.5m to £59.9m in the last financial year. This places the firm just outside the UK’s top 50 law firms by revenue.

Kevin Burrowes, head of clients and markets and executive board member at PwC, said today: ‘This is the natural next step. PwC Legal has a simple strategy to offer advice that complements services provided by PwC. By fully integrating PwC Legal into the rest of our business we are better placed to meet increasing client demand for more holistic advice.’

PwC Legal has 16 partners, 26 directors and a 350-strong UK team in total, based in London, Birmingham, Newcastle, Manchester and Belfast, providing advice in areas including cybersecurity and data protection, corporate reorganisation, disputes, employment, immigration, M&A, pensions and technology. As of tomorrow PwC Legal entity will effectively cease to trade, with the business subsumed in a full fee-sharing merger with PwC LLP.

He added: ‘The ability to embed legal advice more fully into our advisory services allows us to better help our clients solve their complex challenges and problems, particularly as the UK heads towards the uncharted territory of Brexit.’

Three of the ‘big four’ were granted an alternative business structure licence by the SRA in 2014 – the others being EY and KPMG. Deloitte has said it has no plans to go down the ABS route.

Brookes told the Gazette this afternoon: 'In our experience MDPs are becoming more and more attractive as clients' businesses become more complex. They offer an easier solution to their needs.'

PwC's audit arm is a heavily regulated business which limits the firm's ability to provide legal advice to the dozens of FTSE 100 businesses on its audit roster. But Brookes said there will be opportunities to 'embed' the firm's lawyers across the full panoply of non-audit services - from consultancy right through to HR and forensics services - to cross-sell work.

The legal arm has growm 20% year on year in the last two years, she added, and she anticipates further rapid growth through a string of lateral hires from law firms including CMS, Osborne Clarke and DLA Piper.

Crispin Passmore, SRA executive director, policy, said: ‘Clients have always had needs that cut across professional boundaries and subject specialism. A multidisciplinary service allows those clients to get access to all the services they need, organised at their convenience rather than the convenience of professions.

‘We therefore welcome PwC’s shift to become a full multi-disciplinary practice. It is one more example of how modern regulation can work to support innovation.’

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PwC integrates legal arm with UK business to launch MDP

CMS, Nabarro and Olswang confirm 'combination' talks

Three London-headquartered international firms with a combined turnover of nearly £1bn have confirmed they are in discussions to establish a combined firm.

CMS, Nabarro and Olswang are in talks about a 'potential combination', the firms’ leadership teams said in a joint statement this lunchtime.

The statement adds: 'The leadership consider this combination would create a differentiated, modern firm that would combine scale with an exceptional depth of sector expertise.

'The combined firm would provide clients with a stronger and more global platform served by 65 offices across 36 countries, underpinned by a 250-year heritage.'

CMS, created through mergers in 1999, has 850 partners and 3,200 lawyers across 60 offices (pictured) in 35 countries.

The firm reported net profits up by 3.3% for the year ending 31 December 2014 on revenue up 11% from £679m to £753m. In the year it added 109 new partners, including 78 from mergers with Scottish firm Dundas & Wilson and Swiss practice ZPG Avocats.

Nabarro, which has offices in London, Manchester, Sheffield, Brussels, Dubai and Singapore, has a turnover of £130m. The firm has more than 100 partners leading 300 lawyers focused on delivering ‘practical, business-savvy legal advice’, according to its website.

Last year the Gazette reported that partner profits had risen by over 10% for the third consecutive year, on income rising more quickly than at any time since the 2008 crash.

Releasing provisional results last month, Olswang announced that in the year ending 30 April, total revenues were £113m, down from £126m in 2014/15. However, profit-per-equity partner was expected to remain steady at £490,000.

The firm, which was founded in 1981, has a headcount of nearly 700 staff, including 100 partners across seven offices.

Today’s statement concludes that there should be 'no assumption' on the outcome of the talks 'and we will update in due course'.

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CMS, Nabarro and Olswang confirm 'combination' talks

Witness statements ‘more concerned with the weather’ – DJ

A district judge has pleaded with solicitors to bring their witness statements up to scratch if they want to succeed at trial.

Keith Etherington (pictured), speaking at a Law Society conference, said the quality of witness statements was the number one area for improvement among litigators.

The former solicitor-advocate, who made the bench last year, urged firms not to leave responsibility for preparing witness statements solely with the most junior members of staff, and to supervise and check their work instead.

‘Time and time again I see, particularly in personal injury or RTA cases, there is no sensible narrative about where the duty of care lies and what caused the accident. It is the simple building blocks of a witness statement and it’s not good enough,’ said Etherington.

‘They are more interested in what the weather was or how long the ambulance took to arrive. They have not applied their mind to actually what the accident is about – does this witness statement prove liability? If you read the statement and can’t be satisfied then something is wrong.’

Etherington said he had one recent case where the claimant firm produced a single letter from the client as evidence in chief, then sought almost £2,000 in costs for the preparation of witness statement.

‘There was an absolute disconnect between the work that was done and the schedules,’ he added.

‘Unfortunately there are areas where you can give yourselves a bad name. It is given to the most junior members of staff who are not qualified – they don’t transfer their thoughts into a witness statement, and you’ve got to get that right.

Etherington said counsel was often left hoping for the judge to ask certain questions to get certain facts in front of them.

The judge also made one further plea to solicitors to progress the case even without directions from the court.

‘Almost everybody seems to wait until a directions order before they take steps everybody knows are coming next.

‘You can wait three months for fast-track directions or get on with it – the sooner it is done the sooner you get paid so get on with the things you know are going to happen.’

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Witness statements ‘more concerned with the weather’ – DJ

Former Parabis trainee lied to clients about struck-out claims

A trainee solicitor who misled clients about the progress of their cases has been told he should leave the profession.

Jack Patrick Walker, who worked for now-defunct alternative business structure Parabis Law LLP (trading as Cogent Law) in Croydon, was also fined £1,000 following the Solicitors Regulation Authority investigation.

Walker was dismissed in May 2013 after nine months with the firm after analysis of 10 files flagged up misconduct.

An SRA regulatory settlement agreement, published today, confirmed that Walker had misled clients and the firm that claims were being progressed when he knew they had been struck out.

He also failed to inform his clients about offers to settle and failed to attend court hearings on his clients’ behalf, leading to claims being struck out.

Walker failed to comply with court orders and directions, failed to file relevant court documents within stipulated timeframes and misled the court about an application for reinstatement of a claim.

He did not tell the firm or his team leader about the failures and deleted incoming documents from the case management system.

Walker admitted to multiple breaches of SRA principles and outcomes, but said in mitigation he felt he did not possess the necessary skills to carry out the work required of him and, due to staff changes, he was unable to seek assistance.

He also offered his apologies for the failings and accepted his conduct fell below expected standards.

The SRA said his conduct was ‘deliberate and reckless’ and that the agreed outcome was in the public interest.

It was considered that Walker’s conduct, particularly his dishonesty, made it undesirable for him to be involved in a legal practice without first seeking permission from the SRA.

Walker will also pay £600 SRA costs.

Parabis, the first recipient of private equity house investment, went into administration last November with debts up to £78m. Cogent Law was bought by Plexus Law Limited.

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Former Parabis trainee lied to clients about struck-out claims

CMS, Nabarro and Olswang 'to merge'

jeudi 29 septembre 2016

Three London-headquartered international firms with a combined turnover of nearly £1bn are to merge, according to press reports last night.

An announcement involving CMS Cameron McKenna, Nabarro and Olswang is imminent, The Lawyer reports.

CMS, which was established in 1999, has 850 partners and 3,200 lawyers across 60 offices (pictured) in 35 countries.

Nabarro, which has offices in London, Manchester, Sheffield, Brussels, Dubai and Singapore, has a turnover of £130.4m. The firm has more than 100 partners leading 300 lawyers focused on delivering ‘practical, business-savvy legal advice’, according to its website.

Last year the Gazette reported that partner profit had risen by over 10% for the third consecutive year, on income rising more quickly than at any time since the 2008 crash.

The firm, which was founded in 1981, has a headcount of nearly 700 staff, including 100 partners across seven offices.

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CMS, Nabarro and Olswang 'to merge'

IT success stories show online court can work – Briggs

The architect of the future online court system says recent experience of IT projects gives him confidence the scheme will succeed.

Lord Justice Briggs, whose recommendations for online dispute resolution are being consulted on by the government, said civil litigation is on the ‘threshold of a technological revolution’.

Speaking at a Law Society event on Thursday, Briggs acknowledged there are challenges facing those building the online court system – not least how to ensure those who cannot access technology can still use the platform.

He also stressed he did not want to destroy the ‘jewel in the crown’ – the quality of oral hearings in England and Wales.

But Briggs said recent examples of IT in the courts – the Crown court digital case system and Rolls Building e-filing – show what can be achieved.

‘We have had a series of developing outcomes which give great confidence to think the history of successive [IT] disasters is something we have learnt from and something we should not expect,’ he said.

Briggs stated the digital case system (DCS) has 17,000 users in the Crown court adding more than 500,000 pages each week.

‘It is fair to say DCS and CE files [e-filing] are all IT success stories,’ he added.

Briggs admitted there has been a ‘less than complete’ take-up of e-filing in the Rolls Building where its use is still voluntary.

That is set to change next year when use of the CE-file system will become mandatory for all court users.

The Court of Appeal judge revealed the stage one, triage, element of the online court is already being developed, with an ‘extraordinary level’ of engagement from the judiciary.

HM Courts and Tribunals Services, which has committed £700m to a courts upgrade by 2020, will establish a group of litigants in person to establish what questions will be asked of users at the first stage.

A group made up of members of the legal profession will also be formed to give a ‘practical structure’ to the plans.

Briggs reiterated his views, expressed in his report in July, that law firms will have to contemplate greater use of unbundling when the online court comes into force.

‘It is part of the model that a fixed-costs regime should encourage advice from a qualified lawyer – that is best delivered in some way by unbundling [rather] than a cradle-to-grave retainer.’

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IT success stories show online court can work – Briggs

Mexico investors bypass London, lawyers warned

The City is failing to capitalise on strong investor interest in Mexico, with New York remaining the dominant securities market for inward investment, a conference held at the Law Society heard today.

‘Securities are choosing New York, not London,’ Yves Hayaux-du-Tilly, head of the London office of Nader, Hayaux & Goebel, cautioned the sixth annual Lex Mex conference.

‘There is an opportunity for London,’ Hayaux-du-Tilly insisted. ‘[But] London is not pulling its weight – it is not even picking a fight with New York,’ despite being a natural ‘route for investments’ from Asia and the Middle East.

Earlier, conference attendees heard that closer relations between British and Mexican courts and lawyers were central to improving trade and investment.

Mexican supreme court justice Fernando Franco said: ‘One of the purposes of my visit is to form a serious relationship and serious agreement with Great Britain’s judiciary.’

The way for closer relations between Mexico and the UK had been cleared, he noted, through legal reforms where the supreme court had taken a lead. Since a court ruling in 2010, judgments from the Inter-American Court of Human Rights have been binding on Mexican courts.

Mexico supreme court decisions on areas such as the role of the military, same-sex marriage and the rights of indigenous peoples had also informed regional jurisprudence on human rights.

The work of the supreme court, justice Franco said, aimed to support ‘security, tranquility and faith in institutions and procedures’.

Lady Justice Arden confirmed the contribution of Mexico’s supreme court to human rights law was ‘distinguished’.

At the start of the day a memorandum of understanding signed by Law Society president Robert Bourns and the Mexican national bar association’s president Ricardo Cervantes Vargas (pictured) recognising ‘shared principles’, including a commitment to protect the rule of law and the legal profession, and promote dialogue and professional standards.

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LSB softens ‘prescriptive’ diversity approach

Regulators should be able to develop their own methods for collecting diversity data, the Legal Services Board has said, proposing to replace the ‘prescriptive’ approach initially adopted.

The oversight regulator wants to replace its 2011 guidance, which was narrowly focused on data collection, with what it calls an outcomes-focused approach.

A consultation paper published today states that some regulators have ‘now moved past’ the 2011 guidance, 'while others have started collecting the data but have not used the information gathered to begin to inform policy decisions’.

Regulators would be required to: build a ‘clear and thorough’ understanding of the diversity profile of their respective regulated communities; use data, evidence and intelligence to inform regulatory arrangements and operational processes; collaborate with others; and 'account to' their respective stakeholders for its plans and achievements to encourage diversity.

The board proposes to remove a ‘model questionnaire’ from the original guidance. At present, regulators are required to notify the LSB of proposed changes to their data collection methods if it departs from the current guidance.

'We consider that regulators should now be able to maintain and develop their own, independent data collection methods based on their own experiences,’ the consultation paper states.

In May the Solicitors Regulation Authority announced that its annual diversity survey would take place every two years after acknowledging the burden placed on firms by its requirement to collect diversity data.

Regulators will be expected to have ‘appropriate activities’ in place to encourage a diverse profession that deliver the four outcomes by August next year.

The board also proposes formally assessing work carried out by regulators.

Describing the board as a ‘passionate advocate’ for a diverse legal profession, LSB chief executive Neil Buckley said the proposed revisions are focused on ‘consolidating and building’ on the many 'excellent initiatives, in the legal sector and further afield, that are delivering change'.

Buckley added: 'We want regulators to continue to develop their work in this area and as such as have come to the conclusion that it is necessary to also develop and describe what regulators may do to demonstrate they are encouraging a diverse profession.’

The consultation closes on 2 December.

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LSB softens ‘prescriptive’ diversity approach

Legal aid safety net applications soar

Last year’s High Court ruling that the government’s safety net scheme for people denied civil legal aid was unlawful is believed to be the main reason for the government receiving the highest number of applications for exceptional funding in nearly three years.

However, this figure is expected to fall after the ruling was overturned by the Court of Appeal in May.

Latest quarterly statistics show that the Legal Aid Agency received 424 applications for exceptional case funding between April and June this year, the highest in a single quarter for nearly three years.

Nine in 10 of the applications were new; the remaining 41 were resubmitted for review. Just over half of the applications were granted.

The LAA said the impact of last year’s High Court judgment, Director of legal aid casework and lord chancellor v IS, may have contributed to the high volume of applications granted. Applications with a poor or borderline prospect of success had to be considered for funding.

However, in June the agency announced that legal aid would no longer be made available for cases with poor or borderline prospects of success that may have received funding following the Court of Appeal’s ruling in May that the safety net scheme was lawful.

The agency’s latest statistics bulletin states that this decision is unlikely to have affected figures between June and August this year, 'but may have more of an impact in the future’.

Immigration accounted for just over half of the applications received between April and June. Of the 216 applications the agency dealt with in this area of law, 153 were granted.

Two in 10 applications between April and June were made directly by the client – the highest proportion in a quarter since the scheme began three years ago, and double the proportion this time last year.

The agency said the increase may be as a result of simplifications brought into the exceptional case funding application form, implemented in response to the judicial review.

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Legal aid safety net applications soar

One-third of family court cases have no representative at all

More than a third of cases in the family court have no legal representative for either party, new statistics show.

Quarterly statistics for the period from April to June show neither the applicant nor respondent were represented in 34% of cases.

That proportion is at its highest since the major increase in unrepresented parties following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act in 2013, which restricted legal aid for family cases.

When the legislation was passed around 17% of family court cases had no representation for either party.

Cases where both parties are represented has fallen from around 40% in 2013 to around 27% in the second quarter of this year.

From April 2013, legal aid is now only available for private family law cases, such as contact or divorce, if there is evidence of domestic violence or child abuse and child abduction cases.

The quarterly statistics show the courts failed to meet the 26-week time limit, introduced in the Children and Families Act 2014, for disposing of care or supervision proceedings in 40% of cases.

The average time for a disposal in care proceedings is around 27 weeks, although this figure has dropped in recent years.

However, the Ministry of Justice explained this figure was ‘skewed’ by cases that can take a long time: the median time to make a disposal was 25 weeks for all children involved in case and supervision proceedings.

The average time for the disposal of divorce cases with financial remedy has been steadily increasing, from 20.5 weeks at the start of 2015 to 24.9 weeks in the second quarter of 2016.

The workload of the family courts appears to have increased significantly.

There were 66,328 cases started in family courts in England and Wales in April to June 2016, a 10% increase on the same period in 2015.

The number of public law cases started has increased by 24% over the last 12 months, from 3,896 to 4,833. The number of children involved in public law applications increased by 21% over the same period to 8,972.

The courts received 1,429 applications for an adoption order, down 4% from the same quarter in 2015.

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One-third of family court cases have no representative at all

Child abuse inquiry counsel Emmerson suspended

The lawyer overseeing the inquiry into historical allegations of sex abuse has been suspended after raising concerns about the scope of the probe.

According to reports, Ben Emmerson QC (pictured) was suspended by Alexis Jay, chair of the Independent Inquiry into Child Sexual Abuse (IICSA).

Jay said the inquiry had ‘recently become very concerned’ about aspects of Emmerson’s leadership.

Several national newspapers lead on the news with some reporting a breakdown in relations between Emmerson and Jay.

According to The Times, Emmerson found out about his suspension only when he was contacted by the media and read about it on the internet. The paper added that he had desired a ‘restructuring’ of the inquiry but that it was at odds with Jay’s views.

He earned more than £400,000 for his work on the inquiry last year.

According to the BBC, more than one complaint had been made against Emmerson.

A spokeswoman for home secretary Amber Rudd told the Daily Mail: ‘Ben Emmerson’s suspension is a matter for the independent inquiry, which is continuing its vital work in exposing the failure of public bodies and other organisations to prevent systematic child sexual abuse.

‘Our commitment to this inquiry is undiminished. We owe it to victims and survivors to confront the appalling reality of how children were let down by the very people who were charged to protect them and to learn from the mistakes of the past.’

Emmerson, a founder member of high-profile set Matrix Chambers, specialises in European human rights law, public international law and international criminal law.

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Solicitor warned over ‘meritless’ claim against two barristers

A solicitor has been warned that he faces a civil restraint order if he continues ‘unmeritorious proceedings or applications’ in a dispute with barristers following litigation arising from a Michael Jackson tribute concert.

Ruling in the High Court in Michael Henry v BSB, Mrs Justice Whipple turned down IP specialist Michael Henry’s request for a judicial review not to refer two barristers to the Bar Standards Board.

She said the BSB’s Professional Conduct Committee was ‘entitled to conclude’ that there was insufficient evidence to prove there had been any misrepresentation.

The dispute originated in an action which came to court in 2012 over a Michael Jackson tribute concert at Cardiff’s Millennium Stadium the year before. In the action, finance company Quick Draw successfully sued Global Live Events over a loan. Henry was named as a defendant; he was refused permission to appeal.

Henry claimed that the opposition’s legal team made false representations during the trial. He referred barristers Siward Atkins and Jonathan Hill to the BSB as well as referring solicitors from media firm Wiggin to the Solicitors Regulation Authority.

In January this year, the BSB refused to refer the case. A decision by the SRA is pending. Henry sought to challenge the refusal but, in a judgment handed down on 13 September, his request was rejected.

In the judgment, Whipple said that she had considered issuing a civil restraint order against Henry who she said had ‘repeatedly issued claims or made applications … all of which have been dismissed as totally without merit’.

Whipple added that Henry had brought a number of cases arising out of the 2012 action.

‘Although he scored a modest early success in those cases, when the BSB agreed to reconsider its initial refusal to consider some of his complaints, that success has not been sustained, and he has since then been refused permission on a number of occasions,’ Whipple added.

The BSB was awarded costs of £3,194 though Whipple added that it was clear that the regulator had incurred costs ‘far in excess’ of that figure.

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Solicitor warned over ‘meritless’ claim against two barristers

Scottish firms tight-lipped on merger rumour

mercredi 28 septembre 2016

Two of Scotland’s biggest remaining independent law firms have failed to quash rumours they are in late-stage merger talks.

MacRoberts and Morton Fraser together employ more than 400 people in offices in Edinburgh and Glasgow, and a MacRoberts office in Dundee. It is reported a tieup would produce a firm with total income of £38m, the sixth-largest north of the border.

In a statement, MacRoberts said: 'At any point we are in conversation with a number of individuals, teams and firms and it would be inappropriate to make any comment on the existence or otherwise of such conversions.’

Morton Fraser said it ‘doesn’t comment on speculation’.

A number of Scotland’s biggest legal names have disappeared in recent years, partly through cross-border tieups. They include erstwhile ‘big two’ McGrigors and Dundas & Wilson.

Earlier this year merger talks between Maclay Murray & Spens and Addleshaw Goddard are understood to have been called off.

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City watchdog urged to exempt legal from new accountability regime

The legal function of banks and other financial institutions should be excluded from the accountability regime introduced for top executives following the 2008 crash, the Law Society said today.

Chancery Lane was responding to a discussion paper published by City watchdog the Financial Conduct Authority on its senior managers regime (SMR), which came into force six months ago.

The SMR holds senior managers responsible for failures on their watch, exposing them to a fine or ban if they cannot justify the steps they took to prevent wrongdoing.

In the paper, the FCA admits that its previous communications were not clear about to what extent the legal function is included in the SMR.

Currently, the FCA’s framework contains no requirement that the general counsel be designated a 'senior manager'. However, its rules require that a senior manager must have overall responsibility for every activity, business area or management function – including the legal function.

Acknowledging concerns about the inclusion of the legal function in the regime, the FCA is seeking views on the arguments for and against its current position, as well as views on whether the legal function should be included in the regime 'going forward’.

Society chief executive Catherine Dixon said Chancery Lane ‘is clear that legal functions should not be included in the regime because it can create conflict and erode legal professional privilege’.

The Society says inclusion could potentially put the lawyer in a conflict-of-interest situation with their employer and affect the lawyer’s ability to provide full and frank legal advice.

In some circumstances general counsel, by virtue of being included in the regime, could feel obliged to disclose legally privileged information, which could impact on the advice given and on the ability to ensure a fair trial, it added.

At the same time, the regulatory burden on GCs would double, as they would have to comply with FCA and Solicitors Regulation Authority rules.

As the Gazette has reported, as well as concerns about privilege the FCA’s regime could lead to GCs quitting financial institutions if they become accountable.

Highlighting reasons to keep the head of the legal function in the regime, the discussion paper states that, in the FCA’s view, the words ‘activity, business area or management function’ in its handbook cover everything that a firm does, including internally facing functions such as legal.

Systemic failings in the management of the legal function could create risks that can, in turn, impact the wider business and result in a failing within the firm.

The FCA maintains that it can effectively supervise the legal function without access to legally privileged material. It stresses that the Financial Services and Markets Act 2000 protects LPP by providing that no power under the act can be used by the watchdog to require the disclosure of ‘protected items’.

And, as the regime does not mandate who should be allocated overall responsibility for the regime, businesses have the flexibility to designate the most suitable person.

‘For example, the chief executive officer or another director may have overall responsibility for the legal function; or the function may be embedded in another department (eg compliance or human resources),’ the paper states.

FCA chief executive Andrew Bailey said firms are generally taking their responsibilities seriously and had broadly got the regime right.

He added: 'But we recognise culture change takes time and there is still more to do. So we have to keep a watchful eye on the progress firms are making.'

At present the regime applies to banks, building societies and credit unions. It will be extended to all regulated financial services firms from 2018.

The consultation on the legal function closes on 9 January.

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City watchdog urged to exempt legal from new accountability regime

Fare-dodging barrister disbarred

A barrister who was fined £6,000 for avoiding train fares for more than two years has been disbarred.

Peter Barnett travelled from Haddenham and Thame Parkway, in Buckinghamshire, to London’s Marylebone station between April 2012 and November 2014 avoiding the full fare for the 50-mile journey by claiming his journey began in outer London.

The 44-year-old was disbarred following a hearing by an independent disciplinary tribunal on Monday.

Barnett was convicted for six accounts of fraud in September 2015 and was handed a 16-week suspended prison sentence.

He was ordered to pay back nearly £6,000, though Chiltern Railways claimed he owed closer to £20,000.

A spokesperson for the Bar Standards Board, said: ‘Dishonest conduct is incompatible with membership of the bar. The tribunal’s decision to disbar Barnett reflects this.’

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Fare-dodging barrister disbarred

Anti-Brexit group wins right to disclose government's legal defence

An anti-Brexit group has won the right to disclose the government’s legal justification for using royal prerogative powers to trigger the country’s withdrawal from the European Union.

London firm Bindmans, which represents the group, says the development will ‘shine a floodlight’ on plans to bring about Brexit without consulting parliament.

Last week claimants of crowdfunded initiative the People’s Challenge submitted detail legal submissions to the High Court arguing that Article 50 cannot be invoked using prerogative powers and that only an act of Parliament preceded by proper parliamentary scrutiny will be constitutionally sufficient. Following an application from the group, Mr Justice Cranston last night ordered that the government’s complete legal defence could be published after certain sections of the submissions were redacted.

’The parties are not prohibited from publishing the defendant’s or their own detailed grounds,’ said the judge. ’Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under the rules.’

The government had objected to the defence being published, arguing that a case management order made in July meant that all court papers had to remain confidential. Bindmans argued that the government had placed too much reliance on a commitment to protect litigants from online abuse to prevent disclosure of the main points of its defence.

Bindmans partner John Halford (pictured) said today: ’The court’s order allows a floodlight to be shone on the government’s secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny.

’Those who were unsettled by the government’s insistence on its defence being kept secret, will now be surprised by the contents, including submissions that Brexit has nothing constitutionally to do with the Scottish and Northern Ireland devolved governments, that Parliament “clearly understood” it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by Acts of Parliament stripped away if and when the executive withdraws from the treaties on which they are based.’

’These arguments will be tested in court next month, but now they can be debated by the public too.’

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Anti-Brexit group wins right to disclose government's legal defence

MoJ told to comply with jailed drug baron’s kosher food FoI demands

A man jailed for 25 years for his role in a drug-smuggling plot has scored a victory over the Ministry of Justice, which has been told it failed to carry out ‘reasonable research’ about imports of kosher food into prisons.

In a judgment handed down on 19 September, the first-tier information rights tribunal said there ‘must have been’ more information that the MoJ could have revealed about its policy of supplying kosher food to Orthodox Jewish prisoners.

Simon Price, an Orthodox Jew, was jailed in 2005 as part of a plot to smuggle cocaine worth £35m into Britain.

In 2013, he sued HMP Frankland in Durham, for being ‘antisemitic’, claiming that he was not given his own pots and pans to cook kosher meals.

The latest dispute centred on a response to a freedom of information request Price had filed about Wakefield prison (pictured), which the information commissioner deemed had been adequately answered.

Price, who filed the request in July last year, said that the kitchen manager at HMP Wakefield claimed he was advised that any prisoner the MoJ has agreed is a strictly observant Orthodox Jew must arrange for his shul (synagogue) to provide appropriate food.

The terms of the agreement were set out in the prison’s catering operation manual (COM).

Price asked for full details of the instructions and the procedures in the manual and on what authority any provision had been made for a prisoner to have food brought in from outside the prison.

He also asked for the relevant instructions given to security departments.

The MoJ responded on 5 October 2015, confirming that the department holds ‘some but not all’ of the information requested and reproduced ‘relevant parts of the catering manual’.

Price demanded a review, complaining that the response was ‘little more than a cut-and-paste extract from the COM’, which he had already seen.

He added that there must be further information falling within the scope of his request.

The information commissioner said it accepted the MoJ’s findings, prompting Price to appeal to the tribunal.

The tribunal said it accepted ‘unchallenged evidence’ that arrangements ‘above and beyond those set out in the prison service instructions and COM are in existence’.

‘For those arrangements to exist, it would be inconceivable that authority would not be needed from a senior source,’ Judge Annabel Pilling wrote.

She added: ‘Those arrangements would likely have been the subject of advice from Jewish faith advisers and in my view it is inconceivable that this would not have been recorded. I am not satisfied that the MoJ has made a reasonable search for information falling within the scope of this request.’

She added that the MoJ will have to consider what further information is held and whether the cost of complying would exceed the appropriate limit.

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MoJ told to comply with jailed drug baron’s kosher food FoI demands

Legal apprenticeship pioneers present their new starters

Bristol and London firm Burges Salmon has revealed it has hired five legal apprentices, while other firms have spoken about the benefits of taking a ‘leap of faith’ when offering the 'trailblazer' scheme.

The firms were speaking at a Law Society event on the apprenticeship route into the profession.

Burges Salmon is one of the first practices to hire apprentices in the new trailblazer scheme, approved in September last year.

There are three standards: level 3: paralegal, level 6: chartered legal executive and level 7: solicitor.

The solicitor route will take five to six years to complete, and apprentices will need a minimum of five GCSEs, including maths and English, and three A-levels, or equivalent.

People can also become an apprentice without the required grades if they fulfil other requirements, including work experience or an apprenticeship in a relevant occupation.

Victoria Goldsworthy (pictured), learning and development specialist at Burges Salmon, said the firm had ‘no defined recruitment process’ but that it worked closely with schools and parents during selection.

Robert Halton, chief people officer at Burges Salmon, said the hires would mark an ‘exciting development for the legal sector’.

Also during the event, Mike Potter, partner at international firm Addleshaw Goddard, said firms should be encouraged to take a ‘leap of faith’ and appoint apprentices.

‘When we were considering hiring apprentices we asked ourselves, “Do you need a legal background in law to flourish?”,’ Potter said, adding that in many cases the best performers had no legal background.

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Legal apprenticeship pioneers present their new starters

MoJ told to comply with drug baron’s kosher food FoI demands