octobre 2016

Three-fold rise in legal employers paying 'real living wage'

lundi 31 octobre 2016

The number of legal employers committed to paying workers an independently assessed ‘living wage’ has nearly trebled in the past two years.

There are now 91 law firms, barristers chambers and related organisations signed up to the fair pay scheme run by charity the Living Wage Foundation. The commitment also encompasses onsite contractors.

The LWF now has nearly 3,000 accredited organisations, many in the public or third sectors. But lawyers have been at the forefront of efforts in the private sector to establish a sustainable minimum.

Yesterday, to coincide with Living Wage Week, the foundation announced increases to its recommended rates. This have risen by 3.7% in London, from £9.40 to £9.75, and 2.4% outside the capital, from £8.25 to £8.45. One in five UK employees continues to earn less than these amounts, according to research by KPMG.

The foundation’s fair pay rates compare with a government minimum of £7.20 for over 25s.

Legal sector signatories include all the magic circle firms except Freshfields - Linklaters is one of the scheme’s principal partners - and most of the UK top-20 ranked by revenue. The law societies of England and Wales, and Scotland are accredited, as is the Honourable Society of the Inner Temple.

Barristers’ chambers to have signed up with the LWF include Matrix, Blackstone, Outer Temple and Landmark.

New signatories in the last week have included international giant DLA Piper (pictured) and Attwells Solicitors of Suffolk and London.

Living Wage Foundation director Katherine Chapman said: ‘The best employers are voluntarily signing up to pay the living wage now. The living wage is a robust calculation that reflects the real cost of living, rewarding a hard day’s work with a fair day’s pay.

’[Accredited] businesses recognise that clinging to the national minimum wage is not good for business. Customers expect better than that.’

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Three-fold rise in legal employers paying 'real living wage'

Legal cannibals: law firms fuelling rise in negligence claims

An increase in the number of firms aggressively chasing cases against other legal practices is behind a significant rise in the number of professional negligence claims according to figures published today.

City firm RPC says the number of negligence claims filed in the High Court against solicitors has grown by 33% this year, from 98 to 130.

This increase is symptomatic of a wider rise of 170% in claims against solicitors and barristers since 2012.

RPC says conveyancing claims continue to make up around 50% of cases, but there are notable rises in the numbers of negligence claims involving inheritance and trusts.

The firm says the growth in professional negligence specialist firms is behind the rising numbers.

‘These firms often use aggressive advertising campaigns, including on daytime TV, to target individuals who are disappointed with the outcome of a personal injury claim or who have settled a divorce solicitor who handled their original case,’ said RPC.

At the same time, the increase in the number of litigants in person – who do not have a legal adviser to talk them out of pursuing weak claims – has seen more cases end up in court.

Joe Bryant, partner at RPC comments: ‘Dissatisfied clients are becoming increasingly likely to pursue a negligence claim against their solicitor. Advertising campaigns both by those specialist professional negligence law firms seeking to sue solicitors and organisations promoting access to the complaints system has meant that clients are more aware of how to make a claim than ever before, and therefore are more likely to pursue one if they feel their solicitor or barrister made an error during their case.

‘Whilst this is undoubtedly good news for the consumer, there is still not enough knowledge about how complaints against solicitors should be brought, meaning that unrepresented individuals are pursing claims through the courts and placing significant strain on already severely stretched resources.’

The rise, which had been predicted in January, has included an increase in allegations over the mishandling of money in inheritance matters.

RPC says more complex family structures, caused by divorcing and remarrying, have led to wider and less foreseeable inheritance claims, and this has created a ‘significant trap’ for the solicitor drafting a will.

Bad feeling among disjointed families also increases the likelihood of a will being challenged after death, and this almost inevitably brings in the probate solicitor ‘caught in the crossfire’.

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Joint enterprise ruling no ‘passport’ to quashing conviction

Lawyers have given a mixed reaction to the Court of Appeal’s decision not to overturn guilty verdicts in a challenge centring on the ‘wrongly interpreted’ joint enterprise law. One solicitor stressed that a much-heralded Supreme Court ruling earlier this year is not a ‘passport to quashing a conviction’.

In a decision handed down today, the Court of Appeal threw out test cases brought by men convicted of group attacks under the joint enterprise law, despite the fact the Supreme Court ruled in February this year that the law had been wrongly interpreted for more than 30 years.

The challenges were brought by 13 men convicted of six separate offences.

In February, the Supreme Court ruling in R v Jogee said that it was wrong to treat ‘foresight’ as a sufficient test to convict a defendant under joint enterprise. The court said that judges took a ‘wrong turn’ in the 1980s in the way they interpreted the law.

The joint enterprise law had previously meant that defendants would be convicted only if they could have foreseen that a murder or violent act was likely to take place.

But, rejecting the appeals today, Lord Thomas, lord chief justice, said that the Supreme Court’s judgment would ‘not have made a difference’ to the jury’s verdict in the trial of Tyler Burton and Nicholas Terrelonge, found guilty of murder in London in 2014 and that the convictions ‘were and are safe’.

Suzanne Gower, managing director of the Centre for Criminal Appeals, said the ‘disappointing judgment’ would make it harder for individuals and families to achieve justice.

She added: ‘For a prisoner to win their case, comprehensive investigation will be needed to gather evidence that persuades the court a ‘substantial injustice’ has occurred.

‘Put simply, today’s ruling combined with our declining appeals system will prevent injustices from being corrected.’

Mike Schwarz of London firm Bindmans said the judgment will be seen as an attempt to narrow the application of the Supreme Court ruling in Jogee which was credited with giving hope to hundreds of prisoners and their families. 'I expect campaigners and lawyers to mount a rearguard action,' he said.

But Steven Bird, managing director of UK firm Birds Solicitors and chair of the Criminal Appeal Lawyers Association, said the court has made it clear that the Jogee judgment was not a ‘passport to a quashing of a conviction’.

‘The appellant in any case which relies on the interpretation of the law post-Jogee, will have to show that the change in the law would have made a difference on a consideration of the strength of the evidence presented to the jury,’ he said.

Alison Levitt QC, partner at Mishcon de Reya and former principal legal adviser to the director of public prosecutions, echoed Bird’s view.

‘It has always been the case that a convicted person cannot appeal on the sole basis that there has been a change in the law,’ Levitt said. ‘The law even as clarified by Jogee still leaves substantial room for concern about the position of those who, whilst guilty of murder as a matter of law, in reality played a lesser role.’

She added that parliament should consider whether the offence of murder should be divided into first and second degree murder, where only ‘murder two’ carries a mandatory life sentence and ‘murder two’ could be life imprisonment, with the possibility of a lesser sentence depending on the culpability of the individual.

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Barrister disbarred for attacking Jews and ‘blacks’ on Twitter

A barrister has been disbarred for posting ‘seriously offensive’ tweets that targeted Jews, quoted Hitler and criticised Muslims and black people.

Ian Millard was disbarred at an independent disciplinary tribunal hearing on 27 October.

The tweets were posted in November 2014 and targeted various groups of people including Jews, pro-Zionists, Muslims and people he referred to as ‘chavs’.

The tweets, sent between November 21 and 30, included one which read: ‘”Two cab drivers guilty of refusing to pick up blind man and guide dog”. Muslims again. Wake up, UK!’

Another said: ‘Juden sind hier unerwunscht’ which translates as ‘Jews unwanted [or not wanted] here.’

He also posted: ‘So-called *Black Friday [a term for a busy shopping day] is just that in the UK. 95% blacks and browns, with the odd white chavscum here and there. UK finished?’

In another post, he wrote: ‘Hitler considered that a Jewish homeland would be a threat to humanity’ [Deborah Lipstadt, notorious Jew-Zionist, on CNN]. He was right!’

Since being disbarred Millard has continued to post messages, including about Zionism.

He has also commented on his case and wrote: ‘I think that, had I pleaded to stay at the bar, I would not have been disbarred. In fact, the disbarment suits me. I am now free’.

According to the Bar Standards Board, which brought the case, Millard made it clear that he was a barrister on his Twitter account at the time of the offensive tweets. A reference to being a barrister has since been deleted.

Sara Jagger, director of professional conduct at the BSB, said the use of such offensive language was ‘incompatible with the standards expected of barristers’.

Millard is currently unregistered and last held a practising certificate in 2007. He was called to the bar by Lincoln’s Inn in November 1991.

The decision is open to appeal.

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Barrister disbarred for attacking Jews and ‘blacks’ on Twitter

Phone hacking lawyer charged by SRA over surveillance

The Solicitors Regulation Authority has confirmed it will prosecute a lawyer at the centre of the press phone hacking investigation over claims he directed surveillance of rival parties.

The authority said Julian Charles Pike, a partner and head of reputation management at London firm Farrer & Co, has a case to answer.

Pike advised News of the World publisher News International on libel and privacy cases until October 2011 and acted for his client while the company was accused of phone hacking. He was subsequently a witness at the Leveson Inquiry into the conduct of the press.

Mark Lewis, a lawyer acting for phone hacking victims, said in 2011 he planned to report Pike, to the SRA for allegedly suggesting that he and a woman lawyer should be put under surveillance to try to demonstrate that they were an ‘item’.

The SRA notice, published earlier this month, states that in the course of advising his client on the defence of civil proceedings around March 2010, Pike allegedly ‘gave advice to the effect that his client should undertake or commission surveillance of a solicitor and employed barrister acting for the claimants to civil proceedings brought or anticipated against his client’. This was done ‘without proper justification’, the SRA alleged.

The charge continues that in May 2010 Pike commissioned a private investigator to probe the activities of a solicitor and employed barrister acting in proceedings expected against his client.

The SRA states that the allegations are subject to a hearing before the Solicitors Disciplinary Tribunal and are as yet unproven. The Gazette has approached Farrer & Co for comment.

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RBS group claim to press ahead, despite FCA finding 'no wrongdoing'

A group set up to pursue Royal Bank of Scotland for actions related to its defunct Global Restructuring Group said today it is undeterred by the reports that an investigation into the bank’s conduct has found no evidence of wrongdoing.

Mark Humphries, senior partner at boutique litigation firm Humphries Kerstetter and representing claimant RGL Management Limited, told the Gazette that it would be pressing ahead with its claim regardless of the report’s outcome.

Today's Financial Times says that a report ordered by the Financial Conduct Authority will find that there is no evidence that RBS's Global Restructuring Group pushed small businesses into bankruptcy for its own profit. The paper cites ‘people who have seen the report’ as evidence.

Earlier, The Sunday Telegraph quoted the bank’s chief executive Ross McEwan as saying the restructuring group ‘did not always meet the standards it set itself’. However he added: ‘We’ve seen nothing, however, to support the allegations we artificially distressed SME customers for our own gain and are keen to work through this matter.’

The independent report, which was orginally due to be published last year, scrutinised a string of allegations about RBS’s now-defunct unit.

RGL is representing hundreds of claimants against the bank. Humphries told the Gazette earlier this month that that number could ‘stretch to thousands’.

Humphries’ comments came after the BBC and Buzzfeed reported on leaked documents which apparently supported allegations against the Global Restructuring Group.

The leaked documents allegedly showed that Derek Sach, the group's global head, was running a division which claimed to help business customers turn themselves around while also sitting on a committee at RBS’s property arm West Register. West Register decided what customer assets to buy for the bank.

The FCA declined to comment but the Gazette understands the report should be published within weeks and it will then be up to the authority to decide whether to take further action.

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RBS group claim to press ahead, despite FCA finding 'no wrongdoing'

Judicial fast-track would boost diversity

dimanche 30 octobre 2016

Creating a judicial career fast-track for young lawyers could help improve diversity on the bench as they work their way up the judicial ladder, the most senior solicitor judge has told the Gazette.

But such a scheme would be just one of many entry points rather than an exclusive European-style career judiciary, Mr Justice Hickinbottom (pictured), recently appointed to the Court of Appeal, said.

This is one of a range of ideas being considered by senior judges, including developing a generic judicial skillset so applicants would be recruited for their judging abilities and then trained for specific roles.

Sir Ernest Ryder, senior president of tribunals, believes that would create a more objective selection system because ‘you aren’t just looking for someone who looks like you and looks like a good family judge. You are looking for a group of lawyers who satisfy the competencies we want from a judge – now how are we going to train them and where are we going to deploy them?’

Another driver for change is that fewer solicitors are applying successfully for court roles.

Ryder stressed: ‘One thing I am absolutely sure about is I want solicitors’ skills.’ And that means looking at ways of fast-tracking solicitors from part-time roles because ‘we know we can train someone to the appropriate level in a shorter time than it takes now’, he said.

Hickinbottom said that multiple entry points could speed up improvements in diversity. ‘We take judges from the top of the profession,’ he said. ‘But we could also take lawyers in as district or circuit judges in their twenties and support them up through the system. It happens in other jurisdictions and attracts a lot of women.’

However he recognised that those coming up through the ranks could be viewed differently and acknowledged it would require a residential judicial college.

He is not in favour of people becoming a full-time judge without doing a part-time role first. ‘That is dangerous. You can’t go back so you have to enjoy it,’ he said. ‘Most do, but, for those that don’t, it is hell.’

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Row brews over holiday illness claims

Rival camps are readying their weapons as the battle over holiday sickness compensation threatens to become the new hot topic in civil claims.

Travel agents last week called for a crackdown after seeing rising levels of claims from holidaymakers who have become ill on holiday.

The Association of British Travel Agents blamed ‘aggressive sales practices of some claims management companies’ for a ‘significant’ increase in gastric illness claims, a growing number of which are unsubstantiated.

The biggest consumer firms in England and Wales now have whole departments dedicated to running these claims.

North-west firm Bott & Co Solicitors, which has pioneered compensation claims for late flights, says on its website that average compensation for mild food poisoning ranges from £700 to £3,000. Claimants could receive anything from £7,000 to £40,000 if the food poisoning is severe.

Andrew Peters, the firm’s holiday illness department legal manager, said the firm welcomed attempts to stop unmeritorious claims but said the rising number of cases was more to do with people being increasingly aware of their rights.

‘These are not trivial cases,’ he told the Gazette. ‘These claims are entirely avoidable. I would like to see anyone who seeks to trivialise them stay in a hot country and suffer food poisoning – let’s see how trivial they feel it is after that.’

To those seeking to restrict claims, he said the sector is already heavily regulated. ‘Anybody pursuing a claim has to be prepared to stand up in the witness box and show they are honest.’

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Offshoring back-office functions is ‘not so easy’

A legal chief at a tobacco multinational has highlighted the challenges of offshoring back-office functions, a move that is being increasingly adopted by international law firms and businesses.

Alexander Rohde, director of operations and communications at Philip Morris International’s law and compliance department, told in-house lawyers at a conference in London last week that offshoring back-office functions for all of the company’s services to Krakow, Manila and Buenos Aires took time to work properly.

Rohde said: ‘People in Poland are less costly than if they are employed in Switzerland. But there are a couple of negatives. There is a geographical difference and a cultural difference. But mainly people are completely disconnected.

‘People who do certain HR functions or finance elements of our payment system… can only execute what they have been told. They don’t know the big picture and that’s the big issue.

‘Managing teams which are not only global but also teams which are cross-functional is not so easy it turned out. It took us quite a while to make that work properly.’

The 230-lawyer law and compliance department has also set up a ‘steering committee’ consisting of associate GCs ‘who look into everything and anything that goes on with outside counsel’ such as fee rate approval, conflict of interest questions and information security.

New guidelines focused on what external firms can and cannot invoice for has helped to reduce cost, Rohde said. Invoices above $500,000 are reviewed by a committee member. Rohde acknowledged that the review does not help with that particular invoice, ‘however it alerts you on certain things’.

Measures to reduce cost on the personnel side include replacing departing lawyers with those on lower salary grades and ‘localising’ expatriate posts.

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Simpson Millar owners net further £3m

vendredi 28 octobre 2016

Former owners of national firm Simpson Millar have secured a £3m payout after meeting performance targets.

The firm was acquired in June 2014 by stock exchange-listed entity Fairpoint PLC for an initial £9m in cash.

The deal promised a further £6m – split over two years and payable in cash and shares – based on how the firm performed.

Fairpoint today announced to the London Stock Exchange that Simpson Millar’s financial performance has ‘exceeded the financial hurdles’ set for the period ending 30 June 2016, triggering the maximum earn-out.

The group has paid £1.5m in cash and issued 1,061,647 earn-out shares at the previously agreed price of 141p per share to the sellers of Simpson Millar.

The vendors will be restricted from dealing in the earn-out shares issued until after 30 June 2017.

While Simpson Millar has performed well, the Fairpoint share price has tumbled in recent months.

A year ago shares were trading at 185p per share, but the value would drop by around 20p following the announcement of George Osborne’s proposed reform of the personal injury market.

Since then, however, the share value has dropped significantly, dipping to a year-long low of 65p per share earlier this month. The share price dropped 4% to 66p per share following today’s announcement.

Fairpoint, which also acquired Colemans in August 2015, reported last month to the stock exchange that net debt had risen to £15.6m by the end of June.

This was up from £5.2m in June 2015.

Legal services for the company, which previously focused on debt management, is now the biggest revenue driver, accounting for 76% of group income.

The half-year financial figures showed profit before tax slipping from £4.1m in the first half of 2015 to £4m in the first six months of this year.

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Attorney general quizzed on unduly lenient sentences

The attorney general has reaffirmed the government’s plans to extend the scheme for reviewing ‘unduly lenient’ sentences scheme, with stalking one of the crimes that could be considered in any extension.

Responding to questions in parliament, Jeremy Wright confirmed the government’s manifesto pledge to extend the scheme and said a number of offences were ‘surprisingly’ not included at the moment.

Currently murder, rape, robbery and racial or religious crime sentences can be reviewed as well as some cases relating to fraud and drug offences, plus some cases involving child cruelty and sexual offences.

‘We need to look carefully at the whole range of criminal offences to decide what should be inside and what should be outside the scheme,’ Wright said.

He added that a call to extend the scheme to include stalking, made by Conservative MP Mike Wood, was ‘a good case for the types of offences we might consider including in the future’.

However, he stopped short of calls to extend the scheme to include all offences.

Wright said he was in favour of ‘drawing the line between cases within the scheme and those outside in a logical and easily understandable place’.

‘I would also say that it is important to bear it in mind that, even with an extended version of the scheme, we are talking about a very small minority of cases where judges err in this way,’ he added.

Earlier this year, the Gazette reported that 102 cases were extended under the scheme.

The AG’s office received 713 requests during the year, an increase of 108% from 2010 when it had 342 requests.

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Lords call for recognition of ‘growing body of distinct Welsh law’

The operation of the England and Wales jurisdiction should recognise the 'reality of a growing body of a distinct Welsh law', a high-powered Lords committee recommends today in a review of the latest devolution settlement.

Reporting on the Wales Bill, the Lords select committee on the constitution also calls for further legislation to clarify the demarcation of powers between the UK parliament and the Welsh Assembly.

The bill, currently before the House of Lords, seeks to move the scope of assembly law-making powers from a 'conferred powers' to a 'reserved powers' model, in which the assembly will enjoy general legislative competence subject to exceptions such as over sexual offences.

While welcoming the bill's aim, the committee say that the way the proposed legislation implements the reserved powers model is unnecessarily complicated.

'The complexity of the settlement set out in the Wales Bill, in which numerous legal tests interact with hundreds of matters reserved to the UK government and parliament, risks the courts being asked to make decisions about whether the National Assembly for Wales has the power to make laws in certain areas.'

It contrasts these arrangements with the simpler settlement set out in the Scotland Act 1998, where the subjects reserved to Westminster are 'relatively limited, ensuring greater clarity about the devolution of powers'.

Committee chair Lord Lang of Monkton (Conservative former MP Ian Lang, pictured) said: 'The list of reservations is so extensive, and the legal tests that govern the assembly’s powers so complex and vague, that it could be a recipe for confusion and legal uncertainty.

'The outcome is likely to be increased litigation as the courts are asked to decide exactly where the boundaries of the assembly’s authority lies.'

The new regime could even have the effect of reducing the powers of the Welsh Assembly, Lang said. 'We have asked the government whether that was their intention, and if not, how they intend to avoid unintentionally diminishing the assembly’s powers.'

On the controversial question of the need for a distinct Welsh jurisdiction the committee declines to comment, describing the arguments as 'complex'.

However it notes that 'the law applicable in Wales increasingly diverges from the law applicable in England' and says this is an issue that will 'grow in importance as the process of Welsh law-making becomes increasingly significant.'

The bill begins its committee stage in the Lords next week.

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Burglar went on £32k spree in London’s legal district

Police have warned workers in London’s legal district to be aware who they are letting in to office buildings, after revealing the methods of a burglar jailed for stealing office equipment.

Neville Stanbury, 49, (pictured) targeted locations in Fleet Street and Chancery Lane over a five-month period from November 2015 to March this year.

Stanbury would wait for staff entering or leaving buildings and enter the premises before the door closed behind them.

Once inside, he stole items worth a total of £32,000, including Apple Mac laptops, tablets and mobile phones, as well as photography equipment.

Stanbury, of no fixed abode, was jailed on 4 October at Southwark Crown Court, after pleading guilty at the City of London Magistrates’ Court on 12 September to 11 burglary offences.

The thief gave a ‘no comment’ interview but was linked to the offences by detectives from the City of London Police through CCTV evidence.

PC Steven Bailey, who led the investigation into the burglaries said: ‘I want to reassure all those who live, work and socialise in the City that we take such offences extremely seriously. Stanbury seized upon any opportunity to gain access to office premises.

‘A door closing behind someone leaving the building or employees going into work – these were all chances for Stanbury to exploit.

‘I commend those members of staff who confronted Stanbury and escorted him from the premises. I also want to take this opportunity to remind people to be alert to who is following you into your place of work – if in doubt ask to see their ID badge.’

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MoJ opts into EU family law proposal over Brexit risk

The Ministry of Justice says it is in the UK’s interests to opt into an EU regulation on cross-border family matters as a result of risks that could arise once the UK has left the European Union.

The government has decided to opt into a European Commission proposal to repeal and replace the main legal instrument - known as the Brussels IIA regulation - that helps international couples resolve disputes involving more than one country, over their divorce and custody of their children.

In a written ministerial statement issued yesterday, justice minister Sir Oliver Heald (pictured) said that, notwithstanding the result of the EU referendum vote in June, it was in the UK’s interests to opt into the proposal.

The current regulation has applied to civil law cases since March 2005.

Heald said the government ’wants to avoid the risk that, if the new regulation comes into force before the UK’s exit, and the UK has not opted in to the regulation. the existing regulation will no longer apply to the UK because it might be deemed inoperable’.

He added: ’This might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a member state.

’Secondly, even after a UK exit the regulation will affect UK citizens, principally in other member states, and it is in the UK’s interests to influence the negotiations.’

One of the current regulation’s main objectives is to uphold children’s rights to maintain contact with both parents, even if they are separated or live in different EU countries.

Following an evaluation, the commission’s proposal aims to provide clearer deadlines for certain procedures, make it easier for judgments to be recognised and enforced in another member state, and clarify and streamline certain parts of cross-border child abduction proceedings.

The proposal also removes the possibility that a court will refuse to enforce a judgment on the basis that it would have applied different national rules to whether a child should have been heard in the proceedings.

As a family justice measure, Heald said the proposal must be agreed by unanimity in the Council of Ministers.

During negotiations, he said the government will aim to make sure that what is agreed 'respects national competence, limits any impacts on domestic law and minimises any additional burdens on the courts and the authorities that will use the new regulation’.

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Mel Goldberg struck off after dishonesty finding

jeudi 27 octobre 2016

A renowned solicitor with 50 years’ experience in the legal profession has been struck off after being found guilty of one count of dishonesty.

The Solicitors Disciplinary Tribunal today ruled that Mel Goldberg, who made his name as a sports lawyer and agent, be banned after finding he acted for clients in a transaction that bore the hallmarks of money laundering and/or fraud.

The Solicitors Regulation Authority, prosecuting, had sought to link six separate transactions overseen by Goldberg with dishonesty, but the tribunal found just one was linked to dishonesty.

This transaction, referred to as Swiss Garantie, happened five months after an interview in 2013 with indemnity insurers in which concerns were raised about the other five.

Goldberg had already admitted failing to keep up-to-date proper accounts and failing to act in the best interests of client.

The tribunal further found Goldberg, who turns 80 next year, used the client account of his firm inappropriately by using it as a banking facility, failing to comply with money-laundering regulations and acting in transactions where there was a conflict of interest. The tribunal found dishonesty was not involved in any of these allegations.

The three-day hearing started on Tuesday with Chloe Carpenter, of Fountain Court Chambers representing the SRA, explaining that the six transactions in the spotlight were ‘complex and confusing’, with unclear and ill-defined terms and conditions.

Goldberg was ‘routinely’ instructed to act for a borrower and third party in financial transactions, charging a £500 an hour fee. The third party acted as a facilitator for transactions described by Carpenter as ‘dubious’.

Susanna Heley, of London firm RadcliffesLebrasseur, representing Goldberg, had earlier told the tribunal that it could not find dishonesty if it was unable to understand the nature of the transactions, given their complexity.

She said Goldberg had appreciated he should have been more suspicious about the transactions he was involved with, and with hindsight he could see they should have been flagged up.

‘Mr Goldberg is turning 80 this year and by any measure he would be classified as a vulnerable client,’ she said. ‘His position is always ‘I didn’t think there was anything wrong with [the transactions]’. That might make him an idiot or incompetent but it doesn’t make him dishonest.’

Goldberg, a former chairman of the British Association for Sport and Law and representative to high-profile footballers and boxers, told the tribunal he was bankrupt and could not afford to pay costs.

The SDT imposed an order to pay £40,000 prosecution costs, to be enforced only with the leave of the tribunal.

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Mel Goldberg struck off after dishonesty finding

MoJ: tell us what you think of the Legal Ombudsman

The government has asked for views on the performance of the Legal Services Board and Office for Legal Complaints.

The Ministry of Justice today opened a consultation seeking opinions on how the oversight regulator and legal complaints-handler measure up.

The consultation is part of a statutory requirement to review all arm's-length bodies at least once in each parliament.

Each review must examine whether there is a continuing need for the function and form of each organisation.

If either should be retained, the reviews look further at how they can become more efficient and effective, and will analyse their performance.

The review will be carried out by MoJ officials and is expected to take four months, with the call for evidence closing on 24 November.

In the last review of the bodies in 2012, 34 responses were received from regulators, academics, ombudsmen and individuals.

Then, the government gave each body a positive rating for their assessments and said they should be congratulated for how they had met regulatory requirements since they were each formed, having been a product of the 2007 Legal Services Act.

Since that date, the LSB has led discussions about whether it should have a long-term future – even suggesting its own dissolution in favour of a single legal services regulator.

The Office for Legal Complaints, including the Legal Ombudsman, has endured a leadership crisis, with the resignation of its former chief executive and an overhaul of its management roles.

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Solicitor fined over ‘inappropriate advances’ to staff member

A male solicitor and partner who made inappropriate comments and ‘advances of a sexual nature’ towards a junior staff member has been fined £1,000 and rebuked.

Alan Dennis Green, who was a partner at County Durham firm Hewitts, made comments and advances on three occasions between 5 October and 8 October last year.

Green, who resigned as a partner at the firm after the female staff member complained, has also been ordered to pay £300 in costs.

In a notice published yesterday, Green admitted he had failed to behave in a way that maintains the public’s trust in him and had not carried out his work in a way that encourages equality, opportunity and respect for diversity.

The Solicitors Regulation Authority said it had taken the decision to fine Green because of his prompt admission, the fact he resigned from the partnership and his clear regulatory history.

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Solicitor fined over ‘inappropriate advances’ to staff member

Solicitor fined over ‘inappropriate advances’ to junior

A male solicitor and partner who made inappropriate comments and ‘advances of a sexual nature’ towards a junior staff member has been fined and rebuked.

Alan Green, who was a partner at County Durham firm Hewitts, made comments and advances on three occasions between 5 October and 8 October last year.

Green, who resigned as a partner at the firm after the female staff member complained, has also been ordered to pay £300 in costs.

The Solicitors Regulation Authority said it had taken the decision to fine Green because of his prompt admission, the fact he resigned from the partnership and his clear regulatory history.

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FCA to review ‘private warnings’ as part of transparency drive

The Financial Conduct Authority will review its use of private warnings to people suspected of rule breaches, according to a consultation document outlining its future plans.

In its ‘Our Future Mission’ document, published yesterday, the FCA asks whether private warnings are consistent with its desire to be more transparent.

A private warning is a non-statutory tool used to put a person on notice that a breach may have occurred but that formal action will not be taken.

The FCA’s said a private warning does not provide a determination that a breach has occurred and ‘may give the impression that fair process has not been followed’.

However it added that many firms may appreciate that the warnings offer ‘a quick and clear resolution to concerns’ and this can be achieved more quickly than a full investigation.

Solicitors appear divided on whether a review was needed.

Elly Proudlock, counsel at international firm WilmerHale’s investigations and criminal litigation practice, welcomed the news.

She told the Gazette that private warnings can be ‘superficially attractive’, but that because they are taken into account when assessing fitness and propriety they can have ‘serious, long-lasting consequences’.

‘Whilst they may be appropriate in certain types of case, they should not be used as a substitute for rigorous decision-making,’ she said.

But Jill Lorimer, partner at City firm Kingsley Napley, claimed private warnings had a ‘place and value’ within the enforcement tool-kit and warned against curtailing their use.

‘If there are transparency concerns, then perhaps there should be a concerted effort to promote understanding of the role and purpose of these warnings rather than seeking to limit their use,’ she said.

The FCA is also consulting on plans to replace the term ‘referral to enforcement’ with a neutral phrase to reflect the fact it is only a stage of an investigation process.

The FCA is inviting responses to its consultation online.

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FCA to review ‘private warnings’ as part of transparency drive

Look on bright side of diversity, says Sikh top judge

The first Sikh High Court judge has urged solicitors to be optimistic about diversity in the judiciary, despite acknowledging recruitment challenges.

Answering questions at a Diwali celebration at the Law Society last night, Sir Rabinder Singh QC (pictured right, top) said judges tend to be recruited from the bar, adding that senior posts tend to be recruited ‘almost exclusively’ from the ranks of QCs.

He added: ‘If you want greater diversity in the judiciary, particularly in the senior judiciary, you have to tackle things at a much earlier stage.’

Singh was appointed to the High Court in 2011 and is the senior presiding judge of the south-eastern circuit.

Singh suggested to attendees that one of them could be lord chief justice in 2050. ‘It seems like a long time in the future but it’s not. We’re already in 2016. The message I want people to leave with tonight is “let’s be positive”,’ he said.

‘I do not want us to carry on feeling that we are victims. I want us to believe and hope for the future. Why not? Why can’t one of you be chief justice in 2050?’

Singh said he did not come from a privileged background, noting that it was possible for him to become a High Court judge ‘because of the kind of school I went to in the 1970s’.

He added: ‘If you want to see change in the middle of the century, the decisions that people make today are the decisions that are going to have a long-term impact. The fact that people made decisions in the middle of the 1970s enabled me to become a High Court judge 35-40 years later.’

Singh is one of two out of 106 High Court judges of Asian origin.

Barrister Bobbie Cheema-Grubb QC was appointed to the High Court last year. Showing a positive view on this proportion, Singh reminded the audience that there were no High Court judges of Asian origin at the start of the century.

‘When I appeared in the High Court [as a barrister], I never appeared in front of anyone who was not white,’ he recalled.

Acknowledging that the Judicial Appointments Commission has been ‘trying for the better’ over the past decade to improve diversity, Singh said the people who tend to be appointed to the senior levels of the judiciary ‘are still by and large the same type of people’.

But he added that improving diversity was not just an issue of numbers, but about the quality of work as well.

‘There are people doing extremely important and valuable work such as social welfare law, housing law, immigration law, and yet those sectors in law [tend] to be relatively unrepresented in the ranks of the judiciary, particularly at the highest levels,’ he said.

Last night’s event at Chancery Lane was organised in association with the Hindu Lawyers Association, the Society of Asian Lawyers and the Association of Asian Women Lawyers.

Attendees were also treated to a folk dance performance by London group VP Bhangra (pictured right, bottom).

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Look on bright side of diversity, says Sikh top judge

Beware ‘get-rich-quick’ solicitors, SRA to warn public

The Solicitors Regulation Authority will send out notices ‘as widely as possible’, including to national newspapers, in its efforts to warn the public against being duped by solicitors involved in fraud, its board has decided.

The SRA revealed yesterday that it would warn clients over becoming involved in investment schemes that are ‘too good to be true’. The notice (pictured below) opens with the headline: ‘Beware the latest “get-rich-quick” scams.’

It said fraudsters were using solicitors, sometimes as 'co-conspirators', to give credibility to their schemes. These include property development, diamond trading and ‘land banking’.

The warning notice could be published as early as next week.

A notice was published on the SRA’s website last month warning firms on getting involved in such schemes but the latest notice is designed to get the public’s attention and promote the message across the media.

According to the SRA: ‘The public suffer substantial losses from these schemes. They take misplaced comfort from the involvement of a law firm that is not acting for them.’

SRA scam warning notice

Source: Michael Cross

SRA scam warning notice

The SRA noted there had been an ‘increasing tendency’ for firms to pass substantial sums through their client accounts as part of facilitating investment schemes.

A draft notice has been finalised but may receive some ‘final tweaks’ before being sent out to publications, board members told the Gazette.

The SRA said it was aware of continuing cases where consumer losses were more than £100m.

David Middleton, the SRA's executive director, legal and enforcement and post-enforcement, who presented the paper to the board, said there were serious instances whereby solicitors had ‘facilitated the wrongdoing of others’.

Speaking to the Gazette after the meeting, Jane Malcolm, executive director, external affairs, said the regulator was aware the vast majority of solicitors were not involved in such schemes – but that even a few could do a lot of damage.

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Beware ‘get-rich-quick’ solicitors, SRA to warn public

Supreme Court favours insurer after law firm goes under

The Supreme Court has rejected a funder’s attempt to recover around £581,000 from an indemnity insurer after the law firm it was working with went bust.

Impact Funding Solutions was awarded damages in 2013 after Barrington Support Services entered insolvency, and sought to recover the money from Barrington’s insurer, AIG.

Impact lost the claim in the High Court but successfully challenged that ruling in the Court of Appeal.

In Impact Funding Solutions Limited v AIG Europe Insurance Ltd (formerly known as Chartis Insurance (UK) Ltd) the Supreme Court yesterday came down in favour of the insurer after ruling the company’s funding arrangement fell within the scope of an exclusion clause in the PII contract.

Impact had entered into a disbursements funding master agreement (DFMA) by reaching loan agreements with Barrington’s clients, providing funds to Barrington to hold on behalf of its clients and to use for disbursements to run industrial deafness claims.

When Barrington, now in liquidation, failed to investigate the claims correctly, and misapplied the funds, Barrington’s clients were not able to repay the loans and sought to recover their losses.

The crucial exclusion clause provided that AIG would not cover any loss arising from a breach of contract ‘in the course of providing legal services’.

Supreme Court judges opted by a majority of four to one to favour AIG after resolving that the DFMA and the resulting loans to Barrington’s clients were a service which Impact provided to Barrington.

The court ruled Barrington contracted as a principal with Impact and not as an agent for its clients, Barrington clearly obtained a benefit from the funding of its disbursements, this was not an incidental benefit, and it was a service for which Barrington paid an administration fee.

Giving judgment, Lord Toulson said the promise by Barrington was part of a ‘commercial bargain struck by them. Barrington and Impact made a commercial agreement as principals for their mutual benefit, as well as for the benefit of Barrington’s clients’.

‘It did not resemble a solicitor’s professional undertaking as ordinarily understood, and it falls aptly within the description of a "trading liability" which the minimum terms were not intended to cover.’

Dissenting from the majority judgment, Lord Carnwath backed the ruling of the Court of Appeal, saying the obligations arising out of the loans made to cover disbursements were part and parcel of the obligations assumed by a solicitor in his professional duties, and therefore outside the scope of the exclusion.

In the introduction to the ruling, Lord Hodge said that appeal raised questions of general public importance, as it was similar to the terms in all PII policies for solicitors in England and Wales, and is important to the business model of many firms funding litigation since legal aid for civil cases was significantly reduced.

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Supreme Court favours insurer after law firm goes under

Regulators fear they were misled over PII insurer’s collapse

Financial services regulators will investigate a professional indemnity insurer over fears they were misled about its financial position.

The Gibraltar Financial Services Commission (GFSC) today published the report of its probe into the affairs of Enterprise Insurance, which provided cover for 43 firms in England and Wales.

The commission intervened into the firm in July and was declared insolvent, giving its clients 28 days to arrange alternative cover.

In a statement released today, the commission said the extent of Enterprise’s financial collapse had been ‘unprecedented’ and regulators now want to examine the apparent failure of the board to adequately govern the company and to report its true financial position.

The GFSC’s director of legal enforcement and policy Peter Taylor said: ‘The GFSC is shocked by the extent of the collapse of Enterprise. We have reason to think we may have been seriously misled.

‘Given the magnitude of the debt reported by the provisional liquidator and his view as to the serious contraventions by the company, we have major questions of the Enterprise board.’

The commission said insurance companies must be run in a ‘sound and prudent manner’ and the nature and extend of the insolvency demonstrates that had not happened in this case, resulting in ‘extensive losses with serious harm’ to consumers and a wide range of creditors.

Directors who hold regulated positions in other companies have been invited to voluntarily stand down from those positions while the investigation takes place.

Taylor stressed the GFSC has not made any findings or reached any conclusions, but formal action will result if there has been found to be misconduct.

‘We consider it is critical for the reputation of Gibraltar to determine the extent to which any of the directors need to be held to account for what has occurred. We must get to the bottom of what has happened here and we will,’ he added.

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Regulators fear they were misled over PII insurer’s collapse

Financial services regulators will investigate a professional indemnity insurer over fears they were misled about its financial position.

The Gibraltar Financial Services Commission (GFSC) today published the report of its probe into the affairs of Enterprise Insurance, which provided cover for 43 firms in England and Wales.

The commission intervened into the firm in July and was declared insolvent, giving its clients 28 days to arrange alternative cover.

The GFSC’s director of legal enforcement and policy Peter Taylor said: ‘The GFSC is shocked by the extent of the collapse of Enterprise. We have reason to think we may have been seriously misled.

‘Given the magnitude of the debt reported by the provisional liquidator and his view as to the serious contraventions by the company, we have major questions of the Enterprise board.’

Directors who hold regulated positions in other companies have been invited to voluntarily stand down from those positions while the investigation takes place.

Taylor stressed the GFSC has not made any findings or reached any conclusions, but formal action will result if there has been found to be misconduct.

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Regulators fear they were misled over PII insurer’s collapse

LAA invitation highlights yet another ‘advice desert’

mercredi 26 octobre 2016

The government has refused to confirm when it will commence a long-promised review of its controversial legal aid reforms on the same day yet another advice desert was highlighted by the Legal Aid Agency.

Justice minister Lord Keen (pictured) told the House of Lords that the precise timing of a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is ‘currently under consideration’.

The ministry will announce its intentions ‘in due course’, he added.

The ministry pledged to review LASPO three to five years after the act was implemented in April 2013.

Keen was responding to a question from Labour peer Lord Beecham, who was disappointed that the government had ‘not yet decided when to carry out its promise’ despite four-and-a-half years passing since the act's royal assent.

Beecham told the justice minister that he had been contacted that day by a young woman ‘in great distress’ who was in the middle of a custody case with her child’s father, who is legally represented.

The house cheered in agreement when crossbencher Lord Woolf (former master of the rolls Harry Woolf) told Keen that what was happening in relation to legal aid ‘is damaging the reputation of our justice system’.

‘Judges up and down the country are finding it difficult to administer justice,’ he added.

However, Keen reminded his fellow peers that LASPO did not lead to any sudden introduction of unrepresented litigants in the context of family courts and cases, noting that almost two-thirds of family cases had at least one unrepresented litigant prior to the reforms coming into force in April 2013.

He added that legal aid remains available where it is most needed ‘having regard to the financial demands that fall on the country in more areas than just legal aid’.

Keen’s comments came on the day it emerged that the Legal Aid Agency is urgently trying to plug a hole in the provision of housing and debt services in the Cambridgeshire procurement area.

Firms have been invited to submit an ‘expression of interest’ to deliver legal aid housing and debt services after the agency identified ‘an issue with access’.

The invitation states that there are 210 matter starts in housing. Those who are awarded work will also receive four matter starts in debt per year.

The latest invitation is the third the agency has issued in the past seven months, after access issues were identified in Kingston upon Hull and Surrey.

In July, the Law Society produced a shocking infographic showing that nearly a third of legal aid areas had only one solicitor provider who specialises in housing and whose advice is available through legal aid.

Surrey, Shropshire and Suffolk had no housing provider.

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LAA invitation highlights yet another ‘advice desert’

SFO says ‘independence is crucial’ amid takeover fears

The director of the Serious Fraud Office (SFO) has said it is crucial for the office to retain its independence and spoken out against being merged into the National Crime Agency.

David Green (pictured) was giving evidence at a justice committee hearing into the work of the SFO.

Asked whether he was concerned that the SFO could be incorporated into the NCA, Green said he was not ‘immediately concerned’ by the threat but that, like other institutions, he would make a case for its work, as any such move ‘could disrupt ongoing investigations and could undermine staff retentions’.

Green was responding to suggestions that the SFO could become ‘absorbed’ into the NCA following an announcement in February this year whereby the agency was handed more power over the SFO, telling it when it should take up bribery investigations.

Green said the agency has ‘long had powers to direct us to do specific things’ and that he assumed the new powers would ‘allow the NCA to ask me to consider whether to open an investigation. As it stands I have to decide that’.

He said retaining the so-called Roskill model, in which investigators and prosecutors work together from the start of a case, would also be crucial to its work.

‘The Roskill model, retaining independence and making sure fraud is seen as a priority, are all aspects of the SFO’s that should be retained,’ Green said.

He added that the office could lose its effectiveness if its remit becomes a lesser priority by being swallowed up into another department.

‘If you become part of an organisation that has eight or nine priorities, as the NCA does, then an organisation like ours, which has a very specialist focus, will have to compete. Inevitably, as it has done in the past, fraud could lose out.’

He added: ‘If you look at some of the companies we have worked with – Rolls Royce, Barclays, GSK – these are very powerful companies and I would suggest we need visible and demonstrable independence from central government.’

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City firm defeats £15m negligence claim over extent of retainer

The High Court has rejected a professional negligence claim potentially worth more than £15m against a City firm.

Former Ernst and Young partner Cathal Lyons had sought to claim against his former legal advisers Fox Williams in relation to insurance settlements made following a motorcycle accident 10 years ago when he was chief financial officer and managing partner of operations of EY's Moscow arm.

He suffered injuries to his shoulder and foot, and claimed against his firm’s insurance cover.

Lyons brought legal proceedings against Fox Williams in relation to advice from its litigation partner Tom Custance, alleging he had not been advised about a potential long-term disability (LTD) claim and suffered negligence through the non-inclusion of an English law and jurisdiction clause in a 2009 ‘exit’ agreement with EY.

Lyons said he had missed out on around £3.8m in LTD payments and £11.7m – the alleged difference between the sum he accepted in settlement of a subsequent claim against EY, and the value of the lifetime insurance benefits he alleged he would have received if no such dispute had arisen.

The judgment, running to 262 paragraphs, was based on 110 pages of skeleton arguments and involved decisions on 36 issues. The trial bundle consisted of more than 40 lever-arch files of documents.

Fox Williams, represented by national firm DAC Beachcroft, said the issues relating to LTD fell outside the scope of Custance’s retainer and disputed whether he was eligible to claim under LTD policies.

Lawyers described Custance’s involvement in the 2009 agreement as ‘informal’ and denied he was instructed to prepare a long-form agreement.

In any case, they argued, EY would not have agreed to an English law and jurisdiction clause and the outcome of the litigation between EY and Lyons would have been the same even with the clause.

In Cathal Anthony Lyons v Fox Williams LLP , Mr Justice Turner (pictured) said resolution of the LTD issue was ‘bedevilled’ by problems – not least that Custance took few notes from his conversations with Lyons.

The lawyer was also noted to have failed to call for a full copy of EY’s insurance policies.

But Turner said Lyons was making an ‘opportunistic attempt to make the facts fit his case’ by suggesting they had discussed LTD issues in any depth.

‘If the claimant had asked Mr Custance to advise on the scope and operation of the LTD policy then at least some more specific reference to this would have appeared,’ said Turner.

‘Defendants in professional negligence claims do not necessarily enjoy a monopoly of happy hindsight.’

The judge added that Custance did not have a duty within his retainer to advise on potential LTD policies which he had not previously considered.

Turner found Lyons had taken a ‘deliberate and calculated risk’ to enter an agreement with EY without an English law and jurisdiction clause.

The judge said Custance was negligent in failing to point this out and strongly recommend to Lyons that the agreement should include the clause.

But Lyons’ claim failed on causation as it was found that the absence of such a clause made no material difference to the outcome of his claim.

Following the judgment, DAC Beachcroft said this was a case that hinged on the claimant presenting a ‘picture of retainer drift’ beyond those agreed with solicitors.

‘Professional indemnity insurers and solicitors will no doubt welcome another case where such attempts have failed,’ said the firm.

‘This demonstrates that a client will struggle to prove that the scope of the retainer extends beyond the duties clearly identified in the engagement letter in the absence of clear and unambiguous supporting references in the contemporaneous documentation.’

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City firm defeats £15m negligence claim over extent of retainer

SFO says ‘independence is crucial’ amid NCA concerns

The director of the Serious Fraud Office (SFO) has said it is crucial for the office to retain its independence and spoken out against being merged into the National Crime Agency.

David Green (pictured) was giving evidence at a justice committee hearing into the work of the SFO.

Green was responding to suggestions that the SFO could become ‘absorbed’ into the SFO following an announcement in February this year whereby the NCA was handed more power over the SFO, telling it when it should take up bribery investigations.

Green said the NCA has ‘long had powers to direct us to do specific things’ and that he assumed the new powers would ‘allow the NCA to ask me to consider whether to open an investigation. As it stands I have to decide that’.

He said retaining the so-called Roskill model, in which investigators and prosecutors work together from the start of a case, would also be crucial to its work.

‘The Roskill model, retaining independence and making sure fraud is seen as a priority, are all aspects of the SFO’s that should be retained,’ Green said.

He added that the office could lose its effectiveness if its remit becomes a lesser priority by being swallowed up into another department.

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SFO says ‘independence is crucial’ amid NCA concerns

Heathrow Airport expansion faces multiple legal challenges

mardi 25 octobre 2016

The government's plan to fast-track the expansion of Heathrow Airport via the 'national policy statement' provisions of the Planning Act 2008 is almost certain to be confounded by legal challenges, planning law experts predicted today.

Angus Walker, partner at City firm Bircham Dyson Bell and a member of the Law Society's planning and environmental law committee, said that the approval process set out by transport secretary Chris Grayling opened at least three opportunities for legal challenge.

Announcing the government's preference for a third runway, Grayling, a former lord chancellor, said the planning process would involve the national policy statement (NPS) process designed by the last Labour government 'to speed up major projects, but in an open and fair manner'.

The statement will be published in the new year and be subject to a vote in parliament and a consultation overseen by Sir Jeremy Sullivan, former senior president of tribunals.

This will be followed by a planning application which would be signed off by the secretary of state for transport.

However Walker said that recent challenges to other NPS schemes such as the Hinkley Point C nuclear power station give 'an example of what's likely to happen with Heathrow'.

He predicted challenges at three stages:

A possible judicial review of today's announcement.
Of the NPS when it appears, under the challenge period created by the 2008 act.
During the six-week challenge period allowed following the secretary of state's approval of the planning application.

In a foretaste of possible challenges, environmental group Greenpeace today said that expanding Heathrow 'would fuel more climate change, creating over 50% more flights at what is already Europe’s largest airport. Scientists have warned that this will drastically undermine the UK’s ability to meet emission targets agreed upon in the Paris Agreement [on climate change]'.

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Heathrow Airport expansion faces multiple legal challenges

Heathrow expansion faces multiple legal challenges

The statement will be published in the new year and be subject to a vote in parliament and a consultation overseen by Sir Jeremy Sullivan, former senior president of tribunals.

This will be followed by a planning application which would be signed off by the secretary of state for transport.

However Walker said that recent challenges to other NPS schemes such as the Hinkley Point C nuclear power station give 'an example of what's likely to happen with Heathrow'.

He predicted challenges at three stages:

A possible judicial review of today's announcement.
Of the NPS when it appears, under the challenge period created by the 2008 act.
During the six-week challenge period allowed following the secretary of state's approval of the planning application.

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Heathrow expansion faces multiple legal challenges

MoJ unveils plan to rid MedCo scheme of shell companies

The Ministry of Justice stated today that it will not tolerate the creation of ‘shell’ companies designed to undermine its scheme to support independent diagnoses of whiplash injuries.

It has published new rules and qualifying criteria for companies wishing to join the panel of medical experts instructed to diagnose soft-tissue injuries.

The MedCo system has been plagued by companies creating dozens of ‘shell’ entities designed to appear in as many options as possible when lawyers carry out a random search for experts.

The MoJ today stressed that medical reporting organisations set up purely as a ‘shell’ to gather instructions and forward them on to a ‘parent’ are not allowed.

‘It is acknowledged that some MROs may fall under a common third-party ownership model but MROs must be fully functioning entities in their own right and must have a principal function of providing medical reporting services,’ said the department.

Under the new rules, all aspiring MROs must provide documented assurances they are independent, properly staffed and resourced, and ‘directly and solely’ responsible for all work associated with receiving instructions.

Each MRO must establish and maintain the direct management and control of a panel of MedCo-accredited experts, and they must employ staff in-house with responsibility for managing instructions.

All MROs must also put forward a ‘financial instrument’ of £20,000 to show they have sufficient funds available to remunerate medical experts commissioned to write reports.

They will also be expected to have a minimum of £1m for professional indemnity insurance and £3m for public liability insurance.

The criteria apply to all new applicants from today, and to existing companies from 8 November.

As part of the changes, which follow a consultation completed last year and subsequent survey of MedCo users, the revised offer on a search of MedCo will come up with two tier-one MROs and 10 from tier two.

This is an increase from the seven options that currently appear.

The MoJ said top-tier organisations must have the capacity to process at least 40,000 independent medico-legal expert reports each year. If they are new they must show an appropriate business strategy and operational functions to manage such a workload.

They must have contractual agreements with at least 250 individual active MedCo-accredited experts.

These experts must be located in 80% of the postcodes of England and Wales, and in 80% of cases the injured victim must be less than 15 miles from the expert. Top-tier firms, which have three months to comply, must have a financial instrument of £100,000.

Failure to meet the qualifying criteria at any level may lead to further action being taken against that MRO, including suspension and/or removal from the system.

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MoJ unveils plan to rid MedCo scheme of shell companies

Lawyers recognised for LGBT work

Lawyers celebrated for their work to promote diversity and lesbian, gay, bisexual and transgender issues appear in an annual power list celebrating the most active executives.

The OUTstanding Leading LGBT+ & Ally Executive List, presented by the Financial Times, recognises 15 lawyers for their efforts.

The list, instigated by OUTstanding, a professional membership organisation for global businesses, is released every year and is split into three categories – the top 100 LGBT executives, the top 50 ally executives, and the top 50 future leaders.

This year, a hall of fame has also been introduced for the first time.

Stacey Friedman, general counsel at US investment bank JPMorgan, is the highest-ranking lawyer this year at number five, while two partners at magic circle firm Clifford Chance and one at Slaughter and May have also been honoured.

Matthew Layton (pictured), Clifford Chance’s managing partner, is ranked in the ally Executives category while Narind Singh is in the top 100 LGBT executives category.

Layton said: ‘I’m incredibly proud of the progress that the firm has made in supporting our LGBT+ colleagues – it is truly a team effort right across the firm. Inclusivity is essential if we are to perform to our full potential and our workplace must be an environment where each and every person has the confidence to be themselves.’

Daniel Gerring, partner at London and Paris-based firm Travers Smith, was also included in the top 100.

He said: ‘The wide range of work undertaken by all of those here remains as relevant and important as ever and I am pleased to be able to play my part.’

A full list of lawyers included across all categories is below.

David Palumbo, partner, Baker & McKenzie

Justin D’Agostino, global head of disputes and joint managing partner Asia and Australia, Herbert Smith Freehills

Daniel Gerring, partner, Travers Smith

Daisy Reeves, partner, Berwin Leighton Paisner

Narind Singh, partner, Clifford Chance

Saleem Fazal, partner, Taylor Wessing

Claudia Brind-Woody, vice-president and managing director, intellectual property licensing, IBM

Matthew Layton, managing partner, Clifford Chance

Aritha Wickramasinghe, associate, K&L Gates

Krishna Omkar, associate, Slaughter and May

Mohsin Zaidi, pupil barrister, 6 KBW College Hill

Stacey Friedman, general counsel, JPMorgan

David Isaac, head of advanced manufacturing and technology, Pinsent Masons

Deian Rhys, partner, Simmons & Simmons

Daniel Winterfeldt, partner, Reed Smith

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Leading sports lawyer denies money laundering charges

A renowned sports lawyer today appeared before the Solicitors Disciplinary Tribunal denying a string of allegations.

Mel Goldberg, who represents high-profile footballers and world champion boxers, is charged with eight separate allegations in relation to how he ran his west London firm.

Goldberg told the tribunal that he admitted accounts rules breaches, including failing to keep up-to-date accounts and failing to maintain client ledgers for foreign currency transactions.

But the solicitor, who has practised for 47 years and who turns 80 next year, denied allowing client accounts to be used inappropriately as a banking facility.

He also denied failing to carry out due diligence on clients, acting where there was a conflict of interest and not acting in the best interests of clients.

The tribunal heard the Solicitors Regulation Authority's case exemplified six transactions out of 18 investigated from 2011 to 2014, where Goldberg was transferring funds through the client account and claiming fees, but without appearing to discharge any legal work.

Representing the SRA, Chloe Carpenter of Fountain Court Chambers said the six transactions under the microscope were ‘complex and confusing’, with unclear and ill-defined terms and conditions.

In one case Goldberg, who had confirmed in interviews he was aware of his obligations to prevent money laundering, retained a client who acted as a facilitator for securing loans.

This client, named as Goldmoss Ltd, secured a $100m (£82m) investment from a New Zealand financier into a company in California.

The New Zealand financial services regulator had previously warned firms about dealing with this lender.

Goldberg was ‘routinely’ instructed to act for Goldmoss and the borrower, with Goldmoss paid a £2m fee and Goldberg, who charged £500 an hour, taking a cut of that. The SRA said this ‘clearly’ pointed to a conflict of interest.

Carpenter added: ‘This agreement makes no legal sense at all. Any solicitor properly conducting themselves and receiving an agreement like that would be extremely concerned and would not have acted on that transaction at all.

‘These are dubious transactions on their face… he is receiving documents that – even if he was providing legal work – he would not have been competent to do.’

Goldberg’s firm was shut by the SRA in September 2014 after the regulator found reason to suspect dishonesty.

Dishonesty is not included in the allegations.

The hearing, due to last until Thursday, continues.

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IP threats bill will help SMEs, Lords committee hears

Proposals to reform the law governing threats of legal action in intellectual property cases could help small and medium-sized businesses defend their rights against infringements, leading IP solicitors told a House of Lords committee yesterday.

A Public Bill Committee heard that the Intellectual Property (Unjustified Threats) Bill, announced in May, would also improve communications between clients and solicitors and reduce the need for litigation.

Mark Anderson, chair of the Law Society’s IP committee, told the committee that clients whose IP was being misused should be entitled to take action or to inform another company that it was misappropriating its IP without fear of reprisals.

The bill, drafted by the Law Commission, would curtail a legal remedy available to a party threatened with IP litigation on the grounds that a letter constituted an ‘unjustified threat’.

The current proposals would alter that remedy and instead create instances where someone cannot be held liable for making an ‘unjustified threat’.

Anderson told the committee the law needed updating and that solicitors ‘should not be at risk’ for telling a client that they are entitled to take action against infringement.

‘If you can’t even say that then how is an SME supposed to get their attention?’ he said.

Once infringement proceedings are started the threats provisions no longer apply and Anderson said the proposed bill could lead to a reduction in litigation.

Also giving evidence were Law Society IP committee member and partner at London firm Waterfront Solicitors Matthew Harris, and Vicki Salmon, a member of the Chartered Institute of Patent Attorneys.

Harris said the bill would bring the law in line with ‘what a client would normally expect’.

According to the proposed bill, a threats action cannot be brought if the threat refers to primary acts, including making or importing a product, and is made to someone responsible for one of the primary acts.

Also, implied threats will not allow a claim for unjustified threats if they are contained in a permitted communication, including giving notice that an IP right exists; discovering if the right is being infringed and giving notice that sender has an interest in the relevant right.

Baroness Neville-Rolfe (pictured), the IP minister, asked if the bill would be welcomed by SMEs and improve communications, resulting in a reduced need for litigation.

Salmon said it would. ‘You have to at least write a letter which gets their [an infringer's] attention. Improved communications can only be better, and the ability to write a letter is a step forward,’ she said.

'This is not just limited to SME’s however. Some big businesses may also not have a detailed understanding of the law.'

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IP threats bill will help SMEs, Lords committee hears

Personal injury market ‘generally working well’ – SRA study

An independent survey commissioned by the Solicitors Regulation Authority suggests the personal injury market is generally working well, a finding that will be seized upon by opponents of further root-and-branch reform.

Conducted by independent consultant ICF Consulting, the survey suggests the sector is adapting positively following the reforms set in train by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

The study was based on an online survey of law firms and interviews with 15 'non-solicitor stakeholders'.

The findings suggest that consumers are still benefiting from high levels of access to services and there is a perception that fewer frivolous claims are being made.

Only 12% of respondents believed that the practice of solicitors accepting and progressing frivolous cases was prevalent in the market.

Most feel the relationship between solicitors' firms, insurers and medical reporting organisations has improved since the introduction of MedCo, the independent system for sourcing medical reports on soft-tissue injury.

However, the research highlighted concerns over the lack of knowledge within firms seeking to move away from road traffic accident claims and diversify into other PI areas such as noise-induced hearing loss, occupational disease and catastrophic injury.

Nearly a third of solicitor respondents indicated that their firms will be diversifying in the PI market over the next two years.

Specific examples of poor solicitor competence included poor case selection and triage, and inadequate staff supervision.

Judges commented on the ‘sometimes poor’ quality of evidence. They suspected that some work was undertaken by a poorly trained or inexperienced clerk or assistant, with inadequate instructions and sometimes inadequate or inaccurate witness statements.

Meanwhile the report found evidence of attempts to circumvent the ban on referral fees between claims management companies, insurers and law firms, though it noted that a clear distinction been made in the research between lawful and unlawful circumventions.

Concerns were also raised by some claimant firms that defendant solicitors are making pre-medical offers of settlement when the claimant is not in a position to ‘value’ the injuries.

The PI market is estimated to be worth around £3bn a year and accounts for the second largest segment of the UK legal services market.

SRA executive director of policy Crispin Passmore (pictured) said the regulator will carry out a more in-depth review to fully understand the nature, extent and impact of concerns highlighted in the research.

This will be published next year.

A delegation of Tory MPs was due to meet lord chancellor Liz Truss yesterday to press the case for further reform of the sector amid concern the government has cooled on radical measures proposed by former chancellor George Osborne in last year’s autumn statement.

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Personal injury market ‘generally working well’ – SRA study

Sentencing ‘starting points’ for disqualified directors

Magistrates will be given ‘starting points’ to help them sentence disqualified company directors who breach court orders as part of Sentencing Council efforts to ensure a consistent approach in the courts.

The council is suggesting one-year’s custody as a starting point for disqualified company directors who flagrantly breach an order which results in significant risk or actual serious financial loss or harm to the company or others.

Depending on the wider context of the offence and any relevant circumstances, it would be at the court’s discretion whether to remain at the starting point or to move up or down from it.

The council proposes a range of 26 weeks to one year and six months.

A 12-week custodial starting point is proposed for a flagrant breach of an order which results in very low risk or little or no financial loss to the company or others.

The council highlights two levels of culpability for magistrates to consider – a flagrant breach and all other cases.

The consultation paper states: ‘In all but one of the cases reviewed by the council in developing the guideline the breaches were flagrant, with the offender deliberately setting up and/or managing companies or businesses knowing they were prohibited from doing so.

‘The other case related to a disqualified person failing to appreciate that the disqualification order was not restricted to commercial activity and extended to the management of a charity. This is the type of case that would fall into category B [all other cases].’

At present, those who breach a disqualification order contained within the Company Directors Disqualification Act 1986 are liable to be convicted for not more than two years or a fine, or both, and on summary conviction to six months in prison or a fine, or both.

A disqualification can be imposed by the court as an ancillary order on conviction or as a result of bankruptcy and insolvency proceedings. However, there has been no existing guidance for sentencing this breach.

Today’s proposals are set out in the council’s Breach Offences Guideline consultation document.

Magistrates currently do not have guidelines for all court order breaches. Where there is guidance, the council says its format and scope vary.

A survey conducted of 216 magistrates and district judges last year showed that respondents wanted comprehensive sentencing guidelines for breaches of orders, presented in a consistent format and clearly identifiable.

The council hopes issuing a single definitive guideline will ensure a consistent sentencing approach.

For the first time, the guidance includes a focus on risk of harm for some breaches to ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public, without any actual harm needing to have occurred.

The council gives an example of a sex offender who fails to comply with notification requirements with the intention of evading detection to commit further offences.

Other breaches covered in the document include breaches of a community order, suspended sentence order, post-sentence supervision and protective order, as well as breach of disqualification from keeping an animal.

Sentencing Council member Martin Graham (pictured) said offenders can expect ‘robust penalties’ to be imposed where whey breach orders and cause or risk harm or distress to others.

The consultation closes on 25 January.

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Gateley partners net £6.4m from share sales

Partners at pioneering quoted firm Gateley have shared £6.4m from the sale of shares after the expiry of an initial lock-in agreement.

Chief executive Michael Ward (pictured) and chief operating officer Peter Davies are among the beneficiaries, netting £365,000 and £311,000 respectively.

The former partners of what was Gateley LLP retained a 70% stake on the company’s admission to AIM in June last year.

They entered into a five-year lock-in agreement allowing them to sell up to 10% of their interest in any 12-month period following the first anniversary of flotation.

The sales, at 1.11p a share (a small discount on last night's closing price of 1.13p), were announced to the stock market this morning. They represent 5.4% of the total issued share capital. The original float price was £1 per share.

New institutional investors have bought 5.15m shares, and new and existing employees 612,000.

Nigel Payne, chairman of Gateley, commented: 'I’m delighted to welcome new institutional shareholders on to the register and am equally pleased with internal demand from employees recognising the evolution and significant opportunities available to the business.’

Both Ward and Davies retain holdings worth over £3m.

Gateley's share price was unchanged this lunchtime at 113p.

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Gateley partners net £6.4m from share sales

Leigh Day prepares for Supreme Court battle with MoD

lundi 24 octobre 2016

The Supreme Court will this week host the latest chapter in a long-running legal saga about how detainees should be held abroad by the UK.

Lawyers will argue over the legal framework which applies when the UK detains people while assisting other states in maintaining security during periods of internal armed conflict.

The one-day evidence session in Serdar Mohammed v MoD will focus on whether the UK failed to put in place procedural safeguards when Afghan national Mohammed was detained by British troops in 2010.

The suspected Taliban insurgent was held without charge and without access to a lawyer for 110 days, before he was handed over to the Afghan security services. There it is alleged he was tortured and forced to thumbprint a document which confirmed he had confessed to being a Taleb.

He was later convicted by an Afghan court following a trial which Mohammed says he did not understand and was released from detention in Afghanistan in 2014.

In July 2015, Court of Appeal judges ruled unanimously that UN Security Council Resolution 1890 permits detention for only 96 hours before detainees had to be transferred to local authorities. The court found that British forces had no authority to detain Mohammed beyond these 96 hours.

In February, the Supreme Court heard arguments about whether British forces had the legal power to detain Mohammed without charge.

Tomorrow, the law lords will hear arguments about whether the MoD failed to put in place essential procedural safeguards and whether any such failure rendered Mohammed’s detention unlawful.

A spokesperson for Leigh Day, representing the Afghan national, said 'We are hopeful that the Supreme Court will recognise the fundamental importance of the rule of law especially in situations of internal armed conflict where instilling law and order is the primary objective of the British forces.

‘We will be arguing that there needs to be a lawful authority for any detention and for core procedural safeguards to be afforded to a detainee to prevent detention from becoming arbitrary.’

The case comes at a time when the Ministry of Defence has been a vocal critic of firms such as Leigh Day running cases on behalf of civilians in conflict-affected countries abroad.

Measures are being drawn up to restrict these types of claims, and Leigh Day itself is subject to ongoing proceedings at the Solicitors Disciplinary Tribunal over its conduct in running claims against the MoD in the past. The firm denies any wrongdoing and a hearing is expected next year.

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Leigh Day prepares for Supreme Court battle with MoD

Fine for drawing client funds to help daughter

A solicitor who used a deceased client's money – with the consent of the client's sole beneficiary – to help his daughter buy a property has been fined £2,000 by the Solicitors Regulation Authority.

Graham Trevor Parkin, admitted in 1982 and a former equity partner at Leeds firm Henry Hyams, was a close family friend of the client and acted in a personal capacity under three separate powers of attorney before her death in June 2015.

After the client died intestate, Parkin made withdrawals totalling £40,000 from her personal bank account, according to an SRA notice. On 27 August he paid £12,000 into his wife’s personal bank account: payments of £11,000 and £12,000 were used to assist with the purchase of a property for his daughter.

Parkin said all the payments were made in the full knowledge and consent of his late client’s son, who was the sole beneficiary of the estate. The solicitor had been a close family friend of the deceased and her son.

He explained that the first payment was transferred to help the client’s grandson extend a 12-month right-to-buy opportunity and represented the whole of the purchase price: this transaction had been specifically authorised by her prior to her death.

The money initially remained in the client account as it was never used for the transaction, before it was returned to the sole beneficiary.

The payments linked to his daughter’s purchase were said to be made at the suggestion of the client’s son.

Parkin said he was under great pressure to complete that day, and accepted he made an ‘injudicious and irrational’ decision to act in the manner he did. He added that work related pressures and the close relationship he enjoyed with the client and her family had ‘clouded his decision making process’ during the transactions.

All money removed from the client’s bank account has been returned.

Parkin himself reported the matter to the Solicitors Regulation Authority and accepted he ‘temporarily fell’ below the standards expected of a solicitor in practice. He agreed with the SRA to pay a fine of £2,000 and the £5,000 costs of the investigation.

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Fine for drawing client funds to help daughter

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