Scandalous Costs

SL2056

 

Between 29 October and 5 November 2014, Mr Justice Mostyn heard a financial remedy dispute between two embattled divorcing parents.

Their home was worth £291k, a property portfolio worth £317k, pensions of £115k and two businesses valued at £2080k.

By the Financial Dispute Resolution appointment on 12 March 2014, they had spent £226k in costs.  However, eight months later on 6 November, their legal costs rose to a staggering £920k – nearly one third of their assets.

In another case, the current President of the Family Division (in 2008 as a High Court judge) spoke of excessive costs constituting to “a scandal which must somehow be brought under control“. In 2012 Lord Neuberger had a go at costs in his lecture to the Association of Costs Lawyers, saying that hourly billing confused “cost with value”.

To avoid “the grotesque leaching of costs”, like Lord Neuberger before him, Mostyn J proposes fixed costs legal services to replace hourly billing, together with costs caps – and is to send the issue back to the President of the Family Courts for action.

This blogger has always been ambivalent towards hourly rate billing, believing that ‘time spent’ varies according to expertise. The lazy or inept lawyer can spend considerable time doing what the expert will do in an instant. With hourly billing, one is overpaid, whilst the other is inadequately rewarded.

But has the judiciary really grasped the nettle of costs?

The simple flaw lies deeper, in the fact that two firms of litigators, whose interests are served by protracting conflict, are permitted to take their clients into headlong battle, for which both the public and their clients pay at an hourly rate.

What do they pay for? Frequently, the ‘what is there?’ – the identity and value or the assets – is not the problem. Where divorcing couples can’t agree, they get an independent valuation. The real issue is to determine ‘what to do’ with what is there; and that is the job for their barrister.

The impenetrable form E – the court designed document intended to set out a financial picture probably fails in every regard, other than to raise rancour. What is needed is a simple schedule of assets, liabilites and income. After all, the court will attend to these (as did Mostyn J) – not the aspirations and wishes of the parties, nor tactical positions crafted by their solicitors. Why, then, should the preparation (and possible agreement) of such a schedule not be made a pre-requisite of a financial remedy claim?

What to do with the assets is frequently fairly obvious. Up and down the country District Judges hear contested cases in a matter of hours and give extempore judgments immediately following the evidence. More frequently, matters resolve at the financial dispute resolution stage when a judge (without hearing evidence) makes sage suggestions.

Why the battle lines? Why two lawyers and an adversarial process? What is wrong with simple experienced and impartial analysis to help resolve these issues? That the parties won’t agree is simply an excuse by an over-priced, unwieldy adversarial system – made possible and perpetuated by the court process.

Regrettably, what Mr Justice Mostyn did not evaluate was the significant cost to the public of hearing the case – numerous appearances before the lower court, a Deputy District Judge, Judge Bancroft’s salary, Mostyn J’s own salary over seven days, the Family Court and High Court buildings, court staff, heating and lighting – to deal with a ‘delinquent’ couple who had spent £920,000 with their lawyers.

How bizarre is it having public courts dedicated to this massively costly process, paid for at huge cost to taxpayers?

 

 

Down the High Street or direct to Counsel?

Welcome to Clerksroom Direct – a recent web presence to be rolled out to the public on 1 January 2015, providing a new service for barristers, clerks and chambers with a portal designed to be an end-to-end solution for the Public Access Bar.

Clerksroom say that their portal will invite enquiries from the public, obtaining quotes from barristers and allowing the public to select the appropriate service. It is to be free for barristers, clerks and chambers as the client will pay a small additional administration fee for using the portal, importantly, giving client choice.

Direct access has been with us in one form or another since 1999 when I set up and ran the first BarDirect pilots that gave corporate and institutional clients free access to the Bar. Since then, metamorphosing into Public Access, with regular training sessions for barristers and the Bar Council’s directory of practitioners, direct access has become part of the legal landscape.

The Bar’s need to compete in the private client market was accelerated by the Law Society‘s insistence on obtaining higher rights of advocacy for their members. This led to the Bar Standards Board declaring,

“Whilst the referral model remains robust for those cases which require and can afford a division of labour between advocate and litigator, there is a need to allow greater flexibility in service provision in cases where this is not so.”

“The BSB anticipates a market for privately funded work where clients involved in litigation have a choice between the traditional referral model, one-stop services supplied either by solicitor-advocates or by barristers who also provide litigation services, public access services where the barrister provides advocacy and advice but the client conducts the litigation and ‘spot’ purchases by self-represented litigants of advice or assistance with particular aspects of their case.”

With the reduction in legal aid contracts and the hike in legal aid entry criteria for firms of solicitors, combined with the removal or reduction of legal aid from areas of legal work, high street solicitors have been feeling the strain.

Some solicitors are now expressing dissatisfaction with the concept of direct access to the Bar, seeing this as the latest nail in the high street coffin.

The question to be asked by us all is whether these changes are here to stay? A quick web search says that they are. The professional bodies slip stream government policies – and appear to agree.

So, is not now the time to recognise change, rather than adopt Luddite responses of denial? Direct Access may not yet be a legal ‘combined harvester’, but the signs are that this is a distinct possibility. Clients gravitate towards two incentives – cost cutting, and expertise. And this is where the Bar is unique.

The Bar will continue to increase its direct client market share. The professions will have to re-configure their relationships to reflect this. But those ahead of the game -like Clerksroom Direct -may have the steal on us all.

 

 

Farnham Puppy Farm murders

stuart cundy

ACC Stuart Cundy, Surrey Police – Photo courtesy of bbc.co.uk

23 February 2014, Farnham in Surrey, Christine Lee and her daughter Lucy were shot dead by John Lowe.

The weapon was a simple shot gun. It, together with other guns had been taken from him by police in March 2013 following concerns raised by Christine Lee’s other daughter Stacy Banner. By July 2013 they were returned.

John Lowe was Christine Lee’s partner. His cache of seven shotguns were kept by him at Keepers Cottage Stud under his shotgun certificate. At the time of the killing he was 82 years of age. His long-term relationship with Christine Lee had been marred by years of conflict. The case had an uncanny resemblance to that of Michael Atherton.

Today, John Lowe was convicted of murder and awaits sentence. After the verdict, this blogger was placed on stand-by by BBC Radio 4 PM programme. As matters progressed, Kevin Hurley, the Police and Crime Commissioner for Surrey agreed to comment, and unconvincingly, whilst deflecting on ‘cuts’ to the service, blamed Surrey Police staff a ‘flawed decision that failed to meet national standards’.

I see it differently. Time may indeed tell that clerical officers in an under-resourced office at Surrey Police Headquarters made mistakes. A head of department may be disciplined. National standards (which the blogger finds convoluted) may not have been followed.

But the essence of the problem lies not in the guidelines, but the rules that require the return of weapons to a certificate holder.

The debate has not yet matured to this level of examination, but under current firearms law, the possession of a shotgun is a ‘right’ not a ‘privilege’. An applicant does not have to ‘earn’ the opportunity to hold a weapon, nor to demonstrate anything other than it will be locked up securely.  A shotgun certificate “shall be granted” unless the applicant is a prohibited person (for example a known criminal who has served time), is demonstrated not to have a good reason to possess a weapon, or is shown to be “a danger to the public safety or the peace”.

The Farnham puppy farm dilema is not as uncommon as first appears. It’s just that fortuitously, the horror perpetrated by John Lowe is extremely rare.

Throughout police services in the UK, talented, informed and experienced firearms officers will tell you of cases where weapons have been anxiously returned to certificate holders, simply because the rules do not permit any other course.

Courts (usually at first instance the justices), interpret the law just as they are required to do – strictly. When the burden is on a firearms officer to demonstrate that an applicant has no good purpose or will be a danger to the public or the peace, the fact that the applicant has amassed an arsenal of weapons and wanders their neighbourhood dressed in military fatigues is largely irrelevant.

Contrary to Nigel Farage’s ill-judged comments back in January 2014, the 1997 restrictions following Dunblane did not go far enough. Then, and now, the criteria for possessing a firearm of any kind should be changed to one of privilege, and not of right.

The gun lobby will squeal; those who are committed to individual freedoms will protest; but neither group tend to be the victim of gun crime. It is the Christine Lees and the Susan McGoldricks that commonly carry the death penalty for our unruly rules.

 

 

Solving Disputes

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Readers will be familiar with my preoccupation with alternative dispute resolution – especially if you flash back to my postings here – ‘Privatised Courts – where to, where from‘ and ‘Fit for Purpose‘.

With a civil court £100m deficit last year, court fees have had to rise (in one case by 216%). Such rises impact on access to justice for many people. Yet the court issue fee is the least of a litigant’s problems. The biggest is arguably their legal costs at the conclusion of the case.

The only answer to massive legal bills (and the real danger of adverse costs orders against unsuccessful litigants)  is to bypass the legal process altogether; although whilst the courts are open for business, and litigation lawyers strive to make money, this option is not currently realistic.

I have been impressed by recent developments in restorative justice, where those in conflict are encouraged and helped to sort things out between themselves in a civilised way. It is now acknowledged that there are almost no disputes that need to be excluded from this restorative process. Facilitators are arranging meetings in homicide and rape cases, and in long-standing conflicts that have been running for years. Even cases involving highly dangerous perpetrators, those with mental illness, and with children and young people are often deemed suitable for facilitation.

In my view, this is the vision for the future – lawyers and courts standing back, to allow for a more proportionate and appropriate resolution.

It will require a new role for law and for lawyers. Legal rules are there not simply to be known to lawyers and applied by judges in binding outcomes; but should be made available to guide those in dispute towards sensible compromises. The law should act as a framework for a well-ordered life, rather than as technical and incomprehensible set of rules to be adjudicated upon.

Speak to anyone who has been involved in legal processes and they will tell you that justice is always partial. This is because, whilst courts are supposed to be brokers of truth and justice, decisions arise from balances of proof and evidence, and judgments are frequently arbitrary. Once in the legal process, the litigants surrender all real power over outcomes, and remain in the hands of one individual, with that person’s limitations and prejudices. Not all judges are good judges, and not all of their decisions are correct. And to correct a poor decision by appeal takes time and often a considerable amount of money.

Firms of lawyers and barristers’ chambers should offer and provide proper ‘Dispute Resolution Centres’ – a place to which the protagonists can turn for considered and proportionate advice, and from which they are not expelled into an adversarial forum. Joint legal opinions and advice would form the first step helping the ‘parties’ to understand a framework for settlement. After that would come the facilitation stage – not necessarily managed by and restricted to the lawyers – but perhaps overseen by expert dispute brokers. And if issues remained, those in dispute would access simple adjudication by way of joint expert decision or arbitration.

Dispute Resolution Centres could operate on the basis of fixed fees without ‘issue costs’, teams of warring layers, and vitriolic letters – providing a ‘one-stop-shop’ to contain and resolve conflict.

For those that doubt the concept, remember, if lawyers do not take this initiative now, others may do so to their exclusion.

End of life – now await Lord Falconer’s bill on 18 July in the House of Lords

tony nicklinson

The long awaited judgment in R v Nicklinson has been handed down in the Supreme Court. Here is a link to the YouTube video.

Readers will note that the judgment comes after considerable deliberation by  a massive nine  Supreme Court Judges – an extremely rare occurrence. It follows that this is one of the most important judgments of recent times, and is worthy of a careful and comprehensive read.

Dignity in Dying summarise the 366 paragraphs of judgment thus:

Summary of the case outcomes

Martin case

None of the nine justices ordered the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals. However, Lord Neuberger, Lady Hale, in particular, made it clear that the justices expect the DPP to look again at her policy in the light of their concerns and comments, and to amend it as she sees fit.

This is, in particular, to address a clear contrast between what the prosecuting policy actually says about healthcare professionals and assisted suicide, and the interpretation given to it by the DPP’s legal counsel during the court hearing on her express instruction (this was essentially agreeing with Lord Judge’s interpretation in his decision on the case at the Court of Appeal).

Nicklinson/Lamb case

Whilst there was no declaration of incompatibility, several of the justices indicated that they think the court could (depending on the application before it) declare section 2 of the Suicide Act incompatible with Article 8 ECHR rights in the future if Parliament does not amend it.

Lord Neuberger, Lord Wilson and Lord Mance accept that, in the right case and at the right time, it would be open to the Supreme Court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. However, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration.

Lady Hale and Lord Kerr would make a declaration of incompatibility now. Lord Kerr put matters simply:

“If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someone’s death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assister’s aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished-for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloved’s lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye”.

Is  the judgment the ‘yellow card’ to our legislature; or simply indicative of the Supreme Court judges being too cautious – despite the weight of public opinion concerning their moral duty?

The Assisted Dying Bill brought by Lord Falconer is due for its first reading in the House of Lords on 18 July 2014. The majority of Supreme Court judges have sent a clear message to the legislature – ‘whilst we will not interfere now, should the law not be clarified by new legislation, we may’.

Dying for death – the legal right to die

Following a recent personal experience is sometimes not the best time to address life-changing legal issues that will affect others. During the recent protracted death of my 91 year old mother following a severe stroke, I found myself and my family precipitated onto the Liverpool Care Pathway. Our involvement was to watch, bedside, whilst she struggled towards a delayed death, cared for by kind and competent medical staff, but hindered by an unkind process.

The Liverpool Care Pathway is to be reviewed. Is it sufficiently clear? Is it clear regarding the issue of food and hydration during dying? How can we ensure that proper information has been shared with a patient’s family, and consents have been freely given?

The Pathway, developed during the late 1990s in conjunction with the Marie Curie Palliative Care Institute at the Royal Liverpool University Hospital, was to allow people with a terminal illness to die with dignity. Then, and perhaps now, this approach is counter-intuitive for a medical profession dedicated to cures and life.  Entry to the Pathway is the recognition that death is both inevitable and imminent. This final furlong involves the end of active, life-sustaining treatment, and the acknowledgement that death is an objective.

The Pathway may be simple if the patient is unable to take nutrition and liquids without painful medical intervention. An unconscious patient is expected to slip further from life, absent life support. But what if the patient really needs assistance with dying?

Tony Nicklinson suffered from ‘locked-in syndrome’. His unsuccessful High Court challenge to the right to an assisted death was taken over after his death in 2012 by the paralysed Paul Lamb, and resulted in the constitutionally correct, but unkind ducking of the issue by the Court of Appeal. The court held that denying assistance towards death constituted a proportionate interference with Article 8 rights to self-determination. Lord Judge considered that any change to the law was a matter for parliament to legislate.  The associated ‘Martin’ appeal was however allowed. Here, the Director of Public Prosecutions was required to provide clearer guidance on prosecution policy of those, including medical staff, who may accompany a patient to Switzerland for the purpose of assisted dying.

The matter could not end there. The case now awaits judgment from the Supreme Court. Paul Lamb has continued his legal battle for the right to an assisted death, whilst Keir Starmer, the former Director of Public Prosecutions asked for further guidance from the Supreme Court on prosecution policy.

Examining the current guidance, it is significant that the ‘full code test’ which has to be met before a prosecution is brought, comprises not just an evidential test, but a public interest assessment. Herein is the dichotomy – between individual rights (or wishes), and public interest considerations.

Baroness Mary Warnock (moral philosopher and thinker) and Elisabeth MacDonald (cancer specialist and expert on medical law) captured these issues comprehensively and sensitively in ‘Easeful Death- Is there a case for Assisted Dying‘, published by Oxford University Press in 2008. They summarise the debate (as did the House of Lords Select Committee) as representing two conflicting principles – ‘the sanctity of human life’ and ‘the principle of autonomy’. In 1998, the debate centred around the wishes of motor neurone disease sufferer Diane Pretty to die with dignity. Lord Joffe’s bill, the last before Parliament, was rejected in 2006. It is a sad commentary on the state of English law that, whilst parts of the European community have developed a cogent end-of-life policy, the UK still flounders with indecision.

The BBC script writers of Coronation Street revived the debate this year with the death of Hayley Cropper, taking her own life rather than waiting for a painful death. Following the screening, polls recorded that 80% of the British public support the idea of medical assistance to die with dignity. Interestingly, 71% of those expressing religious beliefs also support a change in the law.

Should the wishes of mentally competent adults be treated with respect when it comes to the fate of their own life and body? Should those whose medical or physical condition is so severe that they are unable to help themselves, be assisted on the pathway to dying? Are sufficient safeguards available to prevent unlawful death? Should the compassion card trump the legal prohibition?

The latest Assisted Dying Bill, brought this time by Lord Falconer and modelled on the law in Oregon, USA, is to ‘enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes’. A free vote is to be allowed, although currently 30% of MPs support the Bill and 40% are yet undecided. The Bill’s scope is limited, compared with Switzerland (where assisted suicide has been lawful since the 1940’s), Holland and Belgium.

Whilst this Bill may not have helped my mother towards a peaceful death -with public support – it is certainly a step on the way.