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MAR
27

Jackson Reforms-A Major Change in Law? by Jasbir Kaur

During a House of Lords debate on 26 February 2013, Lord Beecham was unflinching in his criticism of the proposed implementation date of the Jackson reforms.

He observed:

“My Lords, I always like to be consistent and it certainly would be inconsistent of me not to begin with a complaint about the process here. These regulations come to us some five weeks before they are due to take effect. The Bar Council has drawn attention to this, rightly stressing that a major change in the law, particularly in relation to DBA’s, is being introduced with very little time before they come into effect for people to work out how it is going to be applied”.

The implementation date of 1 April 2013 means there is less than a fortnight for litigants, courts, and practitioners to comprehend what has been described by Lord Beecham, as being a “pretty defective-looking set of regulations”.

So what forms part of the Jackson reforms?

  • Contingency fee agreements (now called "damages-based agreements") will be permissible for all types of litigation;
  • Litigants who have entered into a conditional fee agreement with their lawyer will no longer be able to recover the success fee when they win their case, and similarly after-the event insurance premiums will not be recoverable from the losing side;
  • The disclosure exercise will be tailored to each specific case;
  • There will be a change in respect of a defendant having to pay an additional sum to a claimant where the defendant fails to beat a claimant's Part 36 offer to settle (this reverses Carver v BAA [2008] EWCA Civ 412 in which it was held that where a claimant beat a defendant’s Part 36 offer but only just, the claimant should prima facie pay the costs from the date of this offer);
  • The small claims jurisdiction for cases other than personal injury claims will be increased from £5,000 to £10,000;
  • Claims worth £100,000 or less will no longer be able to be heard in the High Court and so will come before the County Court (the current limit is £25,000);
  • There is more encouragement towards mediation and consideration of schemes for pre-action directions;
  • Judges will be encouraged to use their case management powers more strictly, &
  • Judges will also manage the costs of litigation by approving the parties' budgets for costs.

For those unaware of the implications of the new regulations, they will revoke the 2000 Conditional Fee Agreement Order, which allowed for a means of litigation funding where the solicitor agreed to perform the litigation services for no fee if the litigation is unsuccessful. If, however, the litigation is successful, then the solicitor is entitled to claim an uplift, which is known as a success fee, in addition to their base costs. This uplift is recoverable from the losing defendant.

In his Review of Civil Litigation Costs, Lord Jackson made the point that,

“In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice.”

Lord Jackson recommended that the right to recover additional fees from the losing side should be removed, in all cases, and as a result Part 2 Sections 44 – 62 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LAPSO”) will be implemented, which restrict the ability of the claimant, or indeed their legal practitioner, to recover more than their base costs.

It is clear that Rupert Jackson is clearly trying to promote justice and access to the courts system for the majority of those who require it. Therefore, given that this is the main focus, it must be assessed if this is actually the case as this will help to establish the success of any legislation. The prime areas for clarification are: how damages-based agreements will be regulated; what changes will be made to Part 36, and the contents of the new rule on disclosure.

There is a justifiable concern within the legal profession at the lack of time which it will have to digest and prepare for the new rules.  The Law Society's president, Lucy Scott-Moncrieff, has written to the Justice Secretary/Lord Chancellor Chris Grayling, recommending that implementation be deferred again.  Her concern - shared by many - is that, even if the current deadline is achievable, rushing to meet it "at breakneck speed" is a "recipe for chaos".

Nevertheless, the main question is will these reforms actually provide the access to justice that Rupert Jackson intends? If he intends to provide access to justice, he must also intend for there to be a greater level of access to the courts, as this is where justice would be achieved. By cutting out success fees and after the fact costs, this could potentially lead to more mediation instead of using the court system, which may benefit all parties as attending court can be an anxious experience and the courts are often overwhelmed by trivial cases.

So are the reforms really a call for practitioners to press the panic button? Or should we welcome a set of changes aimed at extending access to justice to all?

Overall, it is clear that the aim is to make the dispute resolution process quicker, cheaper and easier. As Jackson himself says,

“The idea that justice has no price tag is unacceptable in the modern world. Our civil system must mend its ways and provide every court user, whoever they may be, with a dispute resolution system at a proportionate cost. This provision is my objective. I have sought to deliver it by proposing a structured package of integrated rules applicable to the conduct of proceedings, funding, and costs.”

Therefore, practitioners now need to give serious consideration to costs budgets and look to embrace these changes with careful compliance being at the back of their minds at all times. Failure to observe these changes may result in draconian measures with costs penalties being imposed by the Court. In spite of dire warnings about the effects of the Jackson proposals on access to justice and on the wellbeing and finances of lawyers, the government has decided to press on with implementation of Lord Justice Jackson’s recommendations for the reform of civil costs. How effective these reforms will be on the dispute resolution process is yet to be seen but there is no doubt, the Jackson reforms are here and are here to stay.

If you require further information on this or on any of these changes and how it may affect you, please contact Jeffrey Lewis or Jasbir Kaur, our Litigation Specialist, on 0207-387-2032.

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MAR
20

Proposed Child Sex Abuse Measures

A package of measures to transform the way the criminal justice system tackles child sexual abuse was announced recently by the Director of Public Prosecutions, Keir Starmer QC.

We thought that we would take a closer look at the proposals, in the wake of a BBC report that more ‘significant’ arrests for sexual abuse are expected in the near future.

Child sexual abuse statistics

Child sexual abuse is, sadly, far from uncommon. According to the latest statistics (2011) from children’s charity the NSPCC, 24.1% of young adults have experienced sexual abuse of some sort during their childhood.

One in six children between the ages of 11 and 17 have experienced sexual abuse at some point, while 9.4% have experienced sexual abuse in the past year, with 15–17 year old girls having experienced the highest rates of abuse over the previous year.

Jimmy Savile scandal

The issue of child sexual abuse has been highlighted by the Jimmy Savile scandal, and the revelation that the late TV presenter may have committed over 200 sexual offences over a 54 year period.

Subsequent investigations have led to other arrests for historic sexual abuse, and these investigations are continuing.

But the Savile affair is not the only major case to have raised awareness about the sexual abuse of children. In May last year nine men were convicted of grooming and sexually exploiting a number of young girls in Rochdale, while only last week eight men were arrested at various addresses in London and Hertfordshire, suspected of sexually exploiting one young girl.

Issues of approach

According to Keir Starmer, while the recent successful prosecutions demonstrate the effort that has been put in to dealing with sexual abuse cases, the past twelve months “raise fundamental questions about the way in which we investigate and prosecute sexual offences, particularly those involving children”.

These include:

  • “the yardsticks traditionally used by prosecutors for evaluating the credibility and reliability of a victim”. Generally issues such as a delay in reporting abuse, returning to the perpetrators, telling untruths in the past and being affected by drink or drugs, count against the credibility of a witness. This may impact on the likelihood of prosecution in child sexual exploitation cases;
  • Not informing victims that other allegations have been made against the person they are accusing. In the Savile case, for example, this might have given some victims confidence to give evidence against him;
  • Unjustified caution by police and prosecutors in some cases; and
  • Victims being unwilling to come forward, perhaps because of a fear of not being believed or mistrust of the authorities.

Proposals

In response, the Crown Prosecution Service (CPS) and the Association of Chief Police Officers (ACPO) have agreed a package of measures, including:

  • A radical clearing of the decks in relation to policy and guidance. All existing policy will be decommissioned, with one overarching and agreed approach to investigation and prosecution of sexual offences to be applicable in all police forces and agreed by the CPS. The CPS will also draft new guidance to ensure consistent best practice, which will be open to public consultation.
  • Training to ensure that there is no gap between policy and practice. The training will be hands on and provide practical advice to police and prosecutors about when a complainant can and should be told about other complaints, among other things.
  • To propose the formation of a national scoping panel, which will review complaints made in the past which were not pursued by police and prosecutors, if requested.

“We cannot afford another Savile moment in five or ten years time,” said Mr Starmer. “Whatever approach is now agreed, it has to be fully informed, coherent, consistently applied across the country and able to withstand the test of time.”

Contact our sexual offence defence solicitors in London

For specialist criminal defence for sexual offences in London, please click here to read more or contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032.

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MAR
20

Details of the 2013 Budget – by Siobhain Egan

Details of the 2013 Budget are just being announced as I write this. The fundamental theme would appear to be tax. Not just the promised cut in corporation tax which is supposed to promote growth in 2015, but also an increase in the personal allowance to £10,000. All of this is positive.

However, the Chancellor would appear to have decided that tax avoidance, often described by this government as “aggressive", and tax evasion are now one and the same. He intends to name and shame those companies and firms that construct and promote tax avoidance schemes, create a centre of excellence to clamp down on tax avoidance and fraud, close tax loopholes, and form new agreements with the Isle of Man, Jersey and Guernsey. The list goes on and on.

We know that the UK has signed reciprocal agreements with the US and Switzerland regarding the exchange of information relating to the ownership and details of offshore monies; we know that accountants and lawyers specialising in tax avoidance work and schemes have been scrutinised by HMRC.

However tax avoidance is not illegal, far from it. Tax evasion is illegal. What this government has done, following the American example, is to blur avoidance and evasion until they are indistinguishable and intend to frighten the life out of those who create, and are party to, legitimate avoidance schemes. Legitimate, that is until HMRC gets around to declaring them null and void.

Expect a whole series of disclosure facility agreements with the Channel Isles (the Isle of Man facility is already in force) and high profile arrests and search/seizures of accountancy and law firms this year.

If you have any concerns regarding the above contact Jeffrey Lewis or Siobhain Egan.

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MAR
19

False Rape & Domestic Violence Allegations

The first ever study by the Crown Prosecution Service (CPS) into so-called false allegations of rape and domestic violence was published last week by Keir Starmer QC, the Director of Public Prosecutions (DPP).

The report, which examines a 17-month period, shows that false allegations of rape and domestic violence are perhaps more rare than previously thought, and that in only a very small number of cases was it considered that there was sufficient evidence and that it was in the public interest to prosecute a person suspected of making a false allegation of rape or domestic violence.

This publication is part of a wider programme of work for the CPS to improve its handling of cases involving violence against women and girls.

"Victims of rape and domestic violence must not be deterred from reporting the abuse they have suffered. In recent years we have worked hard to dispel the damaging myths and stereotypes that are associated with these cases,” said Mr Starmer. “One such misplaced belief is that false allegations of rape and domestic violence are rife. This report presents a more accurate picture.”

The DPP published new legal guidance on perverting the course of justice in July 2011 and, for a period of 17 months, required CPS areas to refer all cases involving an allegedly false allegation of rape, domestic violence or both to him to consider.

During the period covered by the report, there were 5,651 prosecutions for rape but only 35 for making false allegations of rape. There were 111,891 prosecutions for domestic violence, but only six for making false allegations of domestic violence. There were a further three people charged with making false allegations of both rape and domestic violence.

The report also shed light on the context within which false allegations were made. According to Mr Starmer, a significant number of these cases involved young, often vulnerable people, and sometimes even children.

“Around half of the cases involved people aged 21 and under, and some involved people with mental health difficulties,” he said. “From the cases we have analysed, the indication is that it is therefore extremely rare that a suspect deliberately makes a false allegation of rape or domestic violence purely out of malice. It is within this context that the issue should be viewed, so that myths and stereotypes around these cases are not able to take hold."

Contact our sexual offence defence solicitors in London

For specialist criminal defence for sexual offences in London, please click here or contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032.

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MAR
18

Eddie Stobart Law - Tony Meisels in the 'London Advocate'

Eddie Stobart. A name synonymous with haulage, lorry spotters and a cheesy reality television series on Channel 5. Now they have moved into providing legal advice by putting members of the public in contact with learned counsel.

The “Stobart Barrister” website suggests that there is no point using a solicitor when you can “deal with a barrister direct”. Solicitors, the site says, are like family GPs, whose expertise is general, rather than specialist. Someone ought to tell them that, these days, very few solicitors dabble in different areas of law. With all the hurdles we have to overcome in a highly regulated profession, we have all tended to become specialists in our chosen field.

Research conducted by the Judicial Studies Board in 2010 indicated that the largest individual category of work among the firms surveyed was the conduct of criminal litigation on its own.

Stobart Website

Returning to the Eddie Stobart website, click on 'bail applications', where it says, “You normally have just one bail application at the magistrates’ court and one before a Crown Court judge”. Perhaps the Bail Act doesn’t apply to them.

And when Johnny is refused bail, who deals with his girlfriend? Or his property? I wonder if counsel will go unaccompanied to see Johnny in the Scrubs. I doubt they even know how to book a visit, let alone provide advice on arranging visits to the client’s family.

Next, the testimonial on the website, about a case of failing to provide a specimen. Reading this left me confused – and I am a solicitor. According to the testimonial, this lady was advised by a solicitor that she didn’t have a defence. Then a barrister came along, said she had a defence in law and proceeded to have a “full day trial involving a Newton hearing”. Err? Now I am really confused. So I guess she did plead guilty, after all? I rather doubt it was a Newton, far more likely to have been a “special reasons” argument.

Direct Access

Eddie Stobart Barristers is not a ProcureCo and was not established in response to the passing of the Legal Services Act 2011. Instead, they utilise the “direct access” provisions introduced in 2004, although their arrangements are unusual, in that paralegal support is actually provided by Eddie Stobart Services. Both the Co-op and BT have launched similar services. Saga, Direct Line and the AA are believed to be considering similar moves.

I think readers of The Advocate will agree with me that solicitors are not afraid of competition or new ways of working. Take, for example, the influx of barristers onto the duty solicitor schemes. But we are opposed to dumbing down, particularly in an area of law where repercussions for the individual concerned can be so serious. We also feel the public should be fully informed when taking decisions about legal representation. There is no mention on the website of an entitlement to legal aid in criminal proceedings, nor of the fact that private representation in the Crown Court no longer results in an award of costs out of central funds if the defendant is not convicted.

What is Needed in Criminal Litigation

Criticism of the Eddie Stobart model has come from a (perhaps) surprising quarter. Michael Turner QC, chair of the Criminal Bar Association, recently gave a speech suggesting that such schemes prioritise profit over quality and lamenting the demise of many traditional solicitors. Some areas of the law may lend themselves to direct access. Alternatively, a client may require advice on a specific issue. But Criminal litigation requires the expertise of a solicitor who will prepare the case thoroughly. Arguably, the job is more than half done when the advocate arrives at court: the matter is prepared and the advocate now has the ammunition to win the case. Like the best retailers, solicitors also offer an “after sale service” and perhaps we should emphasise that more in our dealings with clients. And many readers of The Advocate will have client relationships going back, in some instances, decades and, again, we should perhaps be promoting this continuity.

The Stobart Barrister website trumpets access to an extensive national panel of barristers – including QCs. Instead of spotting those ubiquitous green lorries, now we can spot m’learned counsel around the courts – they will be easily identified by their green robes and perhaps customised green wigs. Maybe they will have names such as Gladys and Genevieve!  Meanwhile, my firm is exploring the possibility of diversifying into international haulage.

This article is reproduced by the kind persmission of the London Advocate. It was originally featured in the London Advocate Magazine.

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