The Price is Right?

How are you with fixed price legal services?

On 19 February 2012 the Financial Times reported the first known ‘brand-share’ arrangement between a barristers chambers and a solicitors firm in the UK.

Launched on Monday, the scheme offers its clients a range of legal services on a fixed-price contract, rather than charging by the hour – or on a project basis. The holding company, LawVest, part-owned by DLA Piper, is fielding ‘Riverview Chambers’ and ‘Riverview Solicitors’ to undertake the work. Riverview Chambers are apparently a disparate (but quite prominent) group of self-employed silks and juniors from other practices, who will take cases on a fixed-fee basis under a ‘door tenancy’ arrangement with LawVest.

Riverview will not charge hourly rates, nor maintain City of London offices, having decided to operate from the Wirral, sending out their listed solicitors and barristers to visit their clients at their place of work. Clients are to be offered a yearly flat fee and Riverview Solicitors will provide a full service up to the point of litigation. Lawsuits are charged on an ‘ad hoc’ basis.

Novel to the legal market with the Legal Services Act, cases can now be funded by third party investment, including hedge funds, who will recover outlay and profit from successful judgments and awards. Yes, this is the arrival of the investment business in our £23bn legal service marketplace here in the UK.

The Legal Services Act has given England and Wales one of the most liberalised legal markets in the world. But is this really a good thing for the client? How do you feel about 3rd party business investment in litigation? What do you think about working under the direction and financial control of an alternative business structure, whose executives may be focussed on profit rather than justice?


Judged by Judges

Calling all criminal practitioners. What say you to the Quality Assurance Scheme for Advocates? Are you ready to be judged on your next trip to Teesside Combined Court Centre? Is it likely that you will make the grade? Have you boned yourself up on the 161 criteria?

For those who are not yet familiar with the QASA, it seems that we are to be graded by the Judges. Next time you make that ‘marginal’ submission on your client’s instructions, watch out for the Judge’s pen. If it is yellow, you are a beginner and your very career hangs in the balance. If it is cerise and you are desperate for silk, all may ride on your draw of Judge. Let us hope it is not the one you upset last week, or you will have to forget the whole thing and ask your clerk for a couple of briefs in the magistrates court instead.

Appendix 1: (just beyond page 41 of the Great Little Guide to QASA  produced to make the scheme transparent and simple), sets out the ‘statement of standards’. Then scroll down to Appendix 2 to see how the Judge’s will decide your fate. But if you are truly ambitious, make sure you read (and learn) all two hundred pages. You know what they say about exams – it is all decided by the way in which you answer the questions.

The blogger tends towards Lord Justice Moses‘ approach to the topic. There does seem to be something uncomfortable about standing up to the judge who may forever damage your prospects at the Bar. C143 – “press your client to plead guilty”  looks like a recipe for disaster, as does B132 – “when tears appear, throw your hand in”. Beginners should watch A29 – meaning “do what I want you to do” and B91 – “be nice to witnesses”. B121 means “stop pressing just before the witness confesses” but B140 is the killer – “do as the judge pleases, and don’t upset him/her”.

The future of criminal advocacy is to be in good hands. It is now no longer the jury that you will have to please, but the judge.


The modern tradition: a new concept of history

At the request of several blog readers, here is a revised, re-post of the article submitted earlier as part of the former Dere Street Barristers Blog.

 Photo by www.oldukphotos.com

 In 1385 by Royal Ordinance, York acquired its very first legal counsel, the ‘Recorder of York’ – a gentleman “with knowledge of the law and of good reputation”.

In the intervening 627 years this fact has been obscured by the passage of time and memory.

In 2012, York gained its first national grouping of barristers-at-law, with over 100 resident gentlemen and ladies with knowledge and practice of the law.

What better reason than to start a new tradition:

the ‘ Barristers’ Annual Procession’.

About the Idea

Inspired by C J Sansom’s Sovereign, recalling King Henry V111’s 1541 progress from London to York, the Barristers’ Annual Procession is proposed as a secular celebratory event to mark the important and cherished relationship between the City, the Bar and the Judiciary of York.

On a selected Saturday morning annually, robed barristers, lead possibly by the York Waits, would conduct an annual procession from Toft Green (formerly Kings Toft) and Bar Lane to Micklegate Bar, to ascend the city walls. Travelling west, they descend at Skeldergate, crossing Terry Avenue (reminding us of our late colleague Robert Terry) on Bishopsgate Bridge, turning north into Tower Street to cross over to the Eye of York.

On the steps of the Crown Court would be the current incumbent of the Ordinance – the Recorder of York, flanked by the Sheriff of York, Under Sheriff and Chief Constable of North Yorkshire Police. The senior barrister present would present their respects to the Recorder of York together with a white rose, marking the preservation and protection of the rule of law for York for the coming year.

Following the ceremony, the Recorder, Sheriff, Under Sheriff & Chief Constable would be invited as guests to luncheon at the Merchant Adventurers Hall, Fossgate.

Members of the Bar should see this idea as an opportunity to build and maintain professional relationships – with the city, with each other, and with personal guests.

Guests for the luncheon could include chosen solicitors, spouses or partners, seated by ‘Inns of Court tradition’, in messes of four.

Whilst the luncheon would be a private affair, the procession and ceremony at the Eye of York should be a very public event. Local press and outside broadcasting would be invited to capture the occasion, and the City of York Council encouraged to publicise it as a York annual event in their calendar. Departure from Toft Green may be collaborative with York Brewery, marking the importance of the merchants of York to the historic peace-keeping role.

Such an event would afford members of the bar an opportunity to show thanks to their solicitors for their support over the previous year, and to maintain both civic and social bonds that are so essential for the future of the Bar.

Parents in Care Proceedings: Parties or witnesses?

Photo by Gerard Van der Leun

“The worst aspect of care proceedings arises not from the unfair intervention of local authorities, but the unrealistic expectations of parents”.

How controversial is that?  As barristers we spend a significant proportion of our professional lives exposing, or modifying local authorities’ incursions into the family lives of our clients, and sometimes with great success. The blogger recalls intervening in a recent case where the trial judge considered that both the local authority and the Children’s Guardian had got it very wrong, and ordered the return of the children to mother within hours of the judgment.

But quite often there is a fundamental issue with regard to parents’ care, or at least a real cause for concern that needs to be addressed. In such cases is the current adversarial process the best way of addressing it?

The Human Rights Act capture of Article 8 of the European Convention on Human Rights arrived some time after the then Mr Justice Judge said that ‘the difference between public bodies and individuals is that individuals are permitted to do anything not prescribed by law, whilst public bodies may only act as the law permits’. Both tell the same story – that individual rights and freedoms come first in a democratic system of law making.

Where then the question of party status for parents in public law children cases?

The ‘paramountcy principle’ which drives the Children Act 1989 arose as we know from a long history of trial and error in relation to child care and protection. Yes, we have moved some way from the  corrupt Tudor Court of Wards, where Wardship was determined according to the value of the ward’s estate. The blogger recalls his long weekend in Windsor with the then Mrs Justice Butler-Sloss and the then Mistress of Girton College, Mary Warnock whilst some of the structure of the Act was considered. Putting the child first was its aim, but did the Act really accomplish this?

In the perennial tension of competing rights and duties, the voice of parents was retained as a constitutional and jurisprudential ‘must’. But is it essential to keep it in the form of party status?

It has recently been suggested that the controlling management of children’s cases by local authorities should be counter-balanced by an increased management role for the Children’s Guardian.

Imagine a case where, with early, properly resourced intervention, a Guardian working with the Children’s solicitor takes an overall management role in relation to care proceedings. Rather than the long line of different judges (or magistrates), it is the Guardian’s lawyer who ‘case manages’ the proceedings, convening advocates meetings, suggesting a proper approach to the instruction of experts where the parties agree, ensuring that the statements prepared and filed do not replicate each other, where positions are clarified and recorded at the earliest stage; and where recourse to a judge occurs only where the parties dissent from the Guardian’s steer?

With this alone, the five lever arch files could be reduced to two (0r better a small e-file), the number of time consuming and resource expending hearings could be contained to a minimum, and perhaps a less adversarial approach to care proceedings would be possible.

The next question would simply be “why not release the parents from the case management role as parties, and give them automatic (and compellable) witness status”?

In a child-centred system of care proceedings where the children are represented by a Guardian Case Presenter, the party roles could be almost invisible. Witness statements from the parents could be taken by the Guardian’s lawyer and these would become their pleadings in the case. Party status of the local authority could be modified, so that ultimate control was wrested away to provide the necessary balance of rights and obligations.

Clearly, there will always be a need for ‘party status’ for some parents – where serious allegations are to be adjudicated, or where significant harm as defined on Form Ex506 would justify an enhancement, but in so many cases parents would simply be relieved of an unmanageable burden contained in an adversarial process.

Over the next decade or so, will we see an end to the adversarial approach to family law? The signs are already there in private law cases, and the cost/time/stress reasons are becoming more prominent. Is this the last era of the lawyer-led family law dispute? Now, you must have your own thoughts about this? Why not reflect them here on the blog?


‘Fair minded and informed observer’

In a characteristically incisive flash of inspiration, Benet Hytner QC (father of Sir Nicholas, and my ante-pre-penultimate head of chambers), formulated the now famous test of the ‘fair minded and informed observer’.

Those with criminal practices will immediately recognise this “relative newcomer among the select group of personalities who inhabit our legal village” – as a resident from the criminal appeal of R v Gough (1993) in which Lord Goff of Chieveley was concerned with the issue of bias concerning a jurer. This particular villager grew up to be the one ‘to be called upon when a problem arises that needs to be solved objectively’; and yes, it was Lord Hope of Craigshead who, in Helow v Sec of State for the Home Department so Christened her and went on to define her perfectly.

In A v B & X (2011) EWHC 2345  on 15 September 2011, Flaux J exhumed the FMIO to deal with an important matter that affects us as practicing barristers. The case concerned a challenge to the appointment of a barrister arbitrator who had historically accepted unrelated instructions as an advocate from one of the two firms of solicitors involved in the arbitration, and where a previously ‘stayed’ case in which he was instructed by them, revived before he delivered his award. A host of arguments were raised relating to the possibility of  ‘unconscious bias’ and conflict of interest. Fortunately for the arbitrator, Flaux J held that the FMIO would have seen no problem – counsel acts for the lay parties, not for the solicitors, and in any event there had been a firewall between the two matters.

A v B & X did highlight the need for counsel, through their clerks, to check with care for potential conflicts of interest.

However, a wider issue is raised by the lurking presence of our FMIO. How do we as individual barristers measure up against her; indeed should we be thus measured?

There was a time when the principal quality of a good barrister was ‘someone who simply stood up for their client and fought the case’. A quick look through the dinosaur publication ‘Legal 500’… (or is it now Legal 50,000) would identify our heroes – “good fighter”, “doughty opponent”, “a determined advocate”. Now, I sense that all of that is changing.

So often, the blogger is finding the expectation of the bench is to advocate less and, with the skills of a FMIO, to advise and reposition more. Ours is the task of changing the perceptions and expectations of our clients – bringing them right to the middle ground in order to gain any degree of judicial sympathy and attention. Outside positions are not seen as having real merit, and we are invited not to go, or stay there.

With ‘mediation and compromise’ being encouraged, getting quickly to the middle ground is becoming more and more important. Finding our way there requires special skill generally not supported in either our clients’ position statements or our instructions. The courts say ‘no’ to the fight – red meat is off the menu, and easily digestible, shared fast food is the order of the day.

As an advocate of the ‘old school’, I miss the cut and thrust of conflict. Maybe I should return to criminal defence work. But in the family, civil and employment fields polemics are best avoided. We are to become ‘fair minded and informed observers’, who guide our clients in debate rather than conflict.

In his superb article ‘Neutrality is an Unattainable Idea and Should be Abandoned’, Aled Davies raises the impossibility of avoiding becoming part of what we observe. To use Carl Jung‘s terminology, we put that which does not resonate with us into ‘our shadow side’ – a place to which we transfer unwanted thoughts and feelings, where the true merit of those ideas is not properly explored. Thus we loose the objectivity of a fair minded observer, and become part of the problem.

Yesterday’s case was an excellent example. The parties were polarised from the outset, by their history, personality and events. That polemic was re-enforced by their solicitors’ conduct of their cases – on specific instructions – to fuel the fire. As counsel new to the case, we were already infected by the conflict, with large stores of unwanted feelings hidden away in our ‘shadow side’.

In the event, we sat, we talked, and explored – road testing ideas, freeing ourselves and our respective clients from unattainable positions. But the hardest part was letting go of our own particular prejudices forged both on the pleadings, and the anvil of life experience. The turning point was when we decided to meet together with each other’s clients. How quickly did the shadows resolve? No battle, no drama, a little compromise – and contented clients who departed to drink coffee together; leaving us to surf on their wave of thanks.


Practising Certificates – don’t get caught out

Back in the “old days” we did not need a word processed piece of paper to permit us to be barristers. From the introduction of indemnity insurance, through Bar Standards Board fees, Voluntary subscriptions, CPD requirements and practising ceritficates the administrative burden of life at the Bar has become ever more burdensome and time consuming.
BEWARE a new layer of regulation is being introduced with effect from renewal of practising certificates on 1.4.12 You will be liable to pay a surcharge if you do not complete the process by then . If you do not do so by 1.5.12 you will not be on the BSB Register and will not be authoritsed to practice. Chambers will be able to pay the block fee as previously but you need to delegate them to do so. You need to set up an online account and pay your insurance!
Do not delay go to the BarristerConnect web – NOW

Ken Clarke reveals plans to give divorced fathers more rights

Justice secretary says overhaul of family justice system will put emphasis on children’s need for relationship with both parents

Posting by Hélène Mulholland of the guardian.co.uk

Photograph by Paul Hackett

Ken Clarke, the justice secretary, has published proposals to give divorced and separated fathers stronger rights to see their children as part of an overhaul of the family justice system.

Grandparents are also expected to get greater influence, amid plans to look into how “parenting agreements” could emphasise the need for parents to consider children’s continuing relationship with other close family members.

Other reforms include a six-month time limit for care and adoption cases in the courts, although Clarke insisted that flexibility would remain to ensure a time extension for complex cases where this was in the children’s interest.

The key change in the process is the introduction of rules making clearer that it is vital youngsters enjoy “an ongoing relationship with both parents”. Ministers have signalled that they will not offer the guarantee of equal access demanded by some fathers’ rights groups but want to ensure no loving parent is “pushed out”.

In an attempt to prevent custody cases reaching the courts in the first place, the government will promise an extra £10m for mediation services.

Where parents do end up resorting to the law, it will examine ways to amend legislation to ensure no parents are excluded unless they pose a safety or welfare risk.

Clarke told BBC Radio 4’s Today programme: “We want to put back confidence that the courts will have proper regard to the position of fathers and the right of the child to have contact with the father, but of course in the end the interests of the child must be uppermost and it isn’t always possible.”

The change forms part of the government’s response to a review led by the former Whitehall mandarin David Norgrove, but is directly at odds with one of his main findings.

Norgrove voiced his “regret” last week that a legal right would be included despite his report warning it could cause “confusion, misinterpretation and false expectations”. Similar changes in Australia led to delays in resolving custody disputes, he cautioned.

Clarke said Norgrove had initially recommended the move in his interim report but withdrew it following a visit to Australia. The justice secretary said the working group would have the “difficult task” of drafting a statement in the law of the “undoubted joint responsibilities of children, and the joint entitlements of children, without getting into the Australian problem, which was a disaster, because it led to a great increase in litigation with everybody arguing about shared time, and they didn’t draft it very well. We have to draft it with care.”

Clarke said: “We are stating what I think is the view of most people, that both parents have responsibilities and rights towards their children and the children are entitled to try to maintain contact with both parents if it’s at all possible. But what we are doing is going to state that principle in the law, because there are far too many people who still think it’s not being applied – though I do think the courts do apply it and try to apply it in most cases. But we are also going to have to draft what we do to avoid all the undoubted dangers in Australia which caused David Norgrove and his colleagues to be hesitant.”

Clarke said one thing that needed to be addressed was what could be done where one parent, usually the mother, refused to comply with the order of the court allowing the father contact.

Asked whether, in the case of a non-complying parent, he would rather the child were removed so that the father had more rights, Clarke said such cases represented a small minority. “The hardcore ones require the judge to exercise the judgment of Solomon. What we are suggesting is that at an early stage the judge makes it clear he or she does have powers to transfer custody.”

He added: “Of course it’s right that the interests of the child will finally determine it, but I think at an earlier stage in the case it should be made perfectly clear that the court like any other court will expect to enforce its judgments. These are all very difficult areas. They are not capable of simple solutions.”

Clarke denied there was an inconsistency between plans to increase the rights of parents in private law while, where care proceedings were concerned, the government was taking less account of parents’ rights by imposing a six-month limit on care proceedings that could mean a child being taken into care sooner.

Clarke cited the “intolerable” delays in care proceedings that can lead to a child being taken into care and eventually sometimes to adoption. He said the six-month limit was recommended by Norgrove and was designed to speed up the process, but he said there would be cases where the judge would be under a duty to explain why it would have to take longer.

“If they can’t sort it out within six months then the judge has to give reasons for the delay and the continued delay has to be tackled. Of course there will be some cases where it can’t be done but at the moment there is far too much delay in the court … in the interest of the child you cannot leave the child either exposed to risk or in an uncertain situation, delay adoption as much as we do.”

Ministers will also signal a desire to address complaints from grandparents’ groups that their needs are often ignored when children’s futures are being discussed.

Guidance will make clear that they should be formally considered when voluntary parenting agreements are being negotiated in an effort to avoid court action.

A working group involving five ministers will review the 1989 Children’s Act. They are the education ministers Tim Loughton and Sarah Teather, the justice minister Jonathan Djanogly, the equalities minister Lynne Featherstone, and Maria Miller, the work and pensions minister.

Catherine McKinnell, Labour’s shadow children’s minister, welcomed measures to ensure a child has an “ongoing and meaningful” relationship with both parents after separation or divorce, such as mediation and parenting agreements and mediation. But she warned that legislating for the right of both parents to an ongoing relationship “may carry significant risks”.

She said: “Despite a very long and thorough review, and against a background of confusing reports in the media, it’s not clear at all how the government intends to do this.

“I urge the government to consider very carefully how such legislation would be framed to avoid protracted arguments in the courts over interpretation which will inevitably lead to delays, and harm to the child involved. The Children’s Act 1989 firmly places the child’s welfare paramount, allowing judges to examine what’s best for the child in each individual case – which in the majority of cases will be for them to have an ongoing relationship with both parents. Nonetheless, we must guard against anything that would take the focus away from the child, a concern that has also been voiced by many children’s charities.”