First Solicitor Qualifies Through Equivalent Means

Robert Houchill has now become the first person to qualify as a solicitor through “equivalent means,” an alternative to the training period traditionally required before qualifying. Houchill, a senior paralegal, qualified after providing evidence to the Solicitors Regulation Authority (SRA) to show that through his work he had reached the same standard as somebody undergoing the standard training period.

Houchill is employed by Bates Wells Braithwaite, in the London firm’s immigration department, and has been a paralegal for four and a half years. He has now  become the first person to become a qualified solicitor through the Training for Tomorrow programme, a scheme created by the SRA as a way to make the path to qualifying as a solicitor more flexible. The Training for Tomorrow programme formed part of a set of education and training reforms the SRA brought into force last year.

The introduction of “equivalent means” enables workplace experience within the legal sector to be recognised by the SRA. If the experience in question is held to be equivalent to that which would be required as part of a training contract or other recognised, formal training period, then this too can be recognised and qualification granted. Applicants do not have to have worked within the legal sector for any minimum period in order to apply for qualification through equivalent means. They must, however, provide evidence to show that they have achieved strict standards, equivalent to those expected of candidates qualifying through more traditional routes.

Houchill completed an LPC but did not go on to undergo a period of recognised training or to secure a training contract with a legal firm. However, after reviewing his case and the evidence provided, the SRA was satisfied that his years as a paralegal had brought him to the same standards and granted him the same skills as would be expected of a trainee.

According Houchill, that the distinction between the work carried out by solicitors and the jobs of paralegals was growing less stark, making his experience as a paralegal more valuable than it might once have been in preparing for practice as a solicitor.

“I am sympathetic to people who are anxious this is going to undermine the profession or reduce the quality of people being admitted,” said Houchill, who claimed that he would still have preferred to qualify through a traditional training contract.

“But the SRA has made it a demanding process,” he continued, “and you have to provide evidence you’ve done an awful lot to prepare. I’m not falling into the profession, I know it well.”


Legal Aid Judicial Review Dismissed by High Court

Much of the legal profession has been disappointed today as the latest challenge to legal aid reforms, calling for a judicial review, was thrown out by the High Court. The Law Society and a number of prominent practitioner groups for the legal industry now intend to mount an appeal against this decision.

Andrew Caplen, president of the Law Society, said that the High Court’s decision to throw out this challenge had left him “extremely disappointed.” Caplen went on to say that “large areas of the country could be left without legal representation” if the government’s legal aid reforms go ahead as planned. Regarding the intention of the Society and other organisations to seek an appeal, he said: “We will continue to campaign for an effective, publicly funded defence system to prevent the risk of a sharp increase in miscarriages of justice.”

Jonathan Black, president of the London Criminal Courts Solicitors’ Association (LCCSA), also expressed disappointment. He described the High Court’s ruling as a “terrible blow,” and expressed concerns about how he feels the decision “now offers the ideologically driven desire to cut publicly funded criminal legal aid a veneer of respectability.”

Bill Waddington, chair of the Criminal Law Solicitors’ Association (CLSA) also lent his voice to the legal industry’s chorus of disappointment. However, he said that the ruling was only a “temporary setback,” and said “we are not downhearted and by no means out.”

The Ministry of Justice, by contrast, welcomed the decision. A spokesperson for the Ministry said that there was little choice but to cut costs in every area, including legal aid, in light of the UK’s dire economic situation when the current government came to power. A “very generous” system would still be in force even after reforms, the MoJ insisted.

The challenges to the reforms were heard last month by Lord Justice Laws and Mr Justice Cranston. The challenges particularly focussed on the idea of two-tier contracts, as well as cuts to fees. Fees were cut last year by 8.75%, and are due to be cut by a further 8.75% this summer.

In the judgement issued today, Lord Justice Laws said that the plans were “proportionate,” and that he could conclude this “without hesitation.”

“It is accepted on all hands that consolidation in the legal aid market is needed, if legal aid is to be provided at reduced fee,” he said. “It may reasonably be concluded that this is a proper way to achieve it.”

Solicitors Criticise Diversity Survey Timing

Solicitors within the criminal law sector have poured criticism on the Legal Aid Agency‘s recent equality and diversity survey. The timing, they contend, was ill-judged and renders the results of the survey “pointless.”

All contracted providers of crime and civil law were emailed a request to take part in the diversity survey by the Legal Aid Agency. This took place while a three-day judicial review hearing was taking place in the Royal Courts of Justice, defending the decision of the Lord Chancellor to continue with the concept of two-tier dual contracts. This hearing is creating a great deal of uncertainty in the sector, and the result has the potential to have a significant impact on criminal law practice on multiple levels.

The timing of this survey, to coincide with the judicial review and the uncertainty around it, was “ridiculous” according to Criminal Law Solicitors’ Association chair Bill Waddington. He went on to describe the diversity survey as “a distraction technique and one we do not need right at the moment.”

“Could it not have been done three months ago, 12 months ago or in three months’ time?” Waddington asked. “Why now?”

London Criminal Courts Solicitors’ Association president Jonathan Black was similarly critical of the timing of the survey, and questioned why the Legal Aid Agency felt this was the correct time to conduct it. While he welcomed the principal behind the survey, he said that the timing detracted from its value considerably. “with so much uncertainty [at the moment],” Black said, “those records are going to be pointless.”

Criticism over the Legal Aid Agency’s timing was also voiced by the Law Society. The Society recognised the importance of monitoring diversity and equality in every business within the legal sector, but said that now, simply, “is not a good time to ask legal aid solicitors to complete surveys.”

“Many are working against a backdrop of uncertainty,” the Society continued in a statement, “working through complex tender documents while a judicial review decision on the process for criminal duty tenders is pending.” This means that the survey is not only inconvenient for professionals, but will gather results that have the potential to change very quickly.

The Legal Aid Agency defended its decision to court responses to the survey, but did not seem to address the issues and concerns surrounding the survey’s timing. The Agency described the diversity survey as a vital component of its efforts to ensure equal opportunities, and said that “we need a good response so that we have accurate information about our providers.”

Legal Industry Well-Represented in New Year’s Honours List

The legal profession features prominently in the New Year’s Honours List this year, with a number of prominent figures named. In particular, a number of city lawyers and legal professionals working for the civil service are set to receive honours.

One of the most notable legal industry figures to feature on the list is Fiona Woolf. City Solicitor and former Lord Mayor of London, Woolf is currently a consultant for CMS Cameron McKenna. She also recently stepped down from a post as the nominee chair overseeing historic child abuse inquiries. She is (somewhat controversially) being named a Dame Commander of the Order of the British Empire. The honour is being granted for her services to the legal profession as well as to the City of London and to Diversity.

Prestigious honours are also to be given to Harold Carter of Treasury Solicitors, the shared in-house legal organisation used by the government. Carter currently holds the post of deputy legal adviser in the service. For his work in government legal services, as well as for services to the local community in his hometown of Guildford, Surrey, Carter is being made a Companion of the Order of the Bath (KCB).

A KCB is also being granted to David Cook, another prominent figure in government legal services. Cook serves the Office of the Parliamentary Counsel in the role of second parliamentary counsel. His award is for his services to legislation preparation.

A number of legal figures are being made Officers of the Order of the British Empire (OBE). Among them is the Royal Mencap Society’s legal head, Lynda Rowbotham, who receives an OBE for her services to individuals with learning disabilities and to their families. The Treasury Solicitor’s Department’s Deputy Director, Robert Messenger, is also among the legal professionals awarded an OBE this year. Messenger receives the award for his work in the provision of government legal services.

The slightly more prestigious rank of Commander of the Order of the British Empire (CBE) is also being handed out to a number of legal professionals in this year’s list. For example, a CBE for services to children is being awarded to Uma Mehta, the London Borough of Islington’s chief community services lawyer. Leading cross-border and comparative financial law expert Philip Wood QC is another legal figure awarded the rank of CBE. Wood works for Allen & Overy, a magic circle firm, as special global counsel. He receives the award for his services to English law and financial law.

Lord Justice Jackson Criticises Failure to Grasp Skeleton Arguments

Lord Justice Jackson has criticised the legal industry for a continued failure to grasp the need for better skeleton arguments. He said that the need idea was “not rocket science” but that legal professionals were consistently failing to grasp its importance and implement improvements.

Through a Court of Appeal judgement, Jackson took the opportunity to “speak more bluntly” on the issue. In particular, he criticised the way some of the skeleton arguments seen in the upper levels of the court system displayed “poor quality and excessive length.”

The judgement in question related to a case where it was being decided whether a defendant should be committed for contempt of court. The appellant, according to Jackson, produced “35 pages of rambling prolixity.” This, he said, made it extremely difficult to distil the facts and important points from the argument.

Jackson went on to say that “A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments.”

A good skeleton argument, he said, “just requires a few minutes’ clear thought and planning before you start.” Jackson noted that the court of appeal had sometimes deprived certain parties of the costs of skeleton argument preparation, but said that it was no longer sufficient to just issue minor rebukes for poor quality skeletons.

Jackson went on to provide some suggestions for the preparation of a good skeleton argument. He said that such an argument should be designed to provide judges with a “concise, user-friendly introduction” to the relevant issues, arguments and facts of the case. This should be done with cross-referencing to other relevant documents or authorities.

In terms of length, Jackson suggested that usually a skeleton prepared by an appellant should not exceed 25 pages, and usually it should be significantly shorter.

Jackson is not an entirely uncontroversial figure within the legal industry. He has issued many suggestions for reforms or improvements which have not always proved popular across the board. In particular, he carried out a review of civil litigation and this contained a number of controversial proposals as well as many well-received ones. These were later implemented somewhat selectively by the government, particularly those relating to the even more controversial legal aid reforms.

Senior Judge Calls for Family Court Reforms

Family Division president and High Court judge Sir James Munby (right) has called for “radical” reforms of the family court system. This call forms part of the ongoing and high-profile discussion surrounding the impact of legal aid cuts on the family court, with Munby suggesting that overhauling the system would help to somewhat mitigate the negative impact of these cuts.

The cuts to legal aid, removing it from the larger part of family court cases, have resulted in a huge increase in the number of people appearing without any legal representation. Munby suggested that parties appearing without representation is now the “reality” of the family courts, and that the system must be adjusted in order to reflect this.

Speaking to the Legal Wales Conference last week in Bangor, Munby also suggested that a radical overhaul of the divorce process could be needed. Not for the first time, Munby suggested the introduction of a no-fault divorce system – something which does not truly exist in the British system but is seen in some other jurisdictions around the world. In fact, Munby suggested that the concept of fault could be removed from the divorce process entirely, leaving irretrievable breakdown as the sole basis for divorce.

Munby also suggested that the process of obtaining a divorce and the matter of seeking financial relief afterwards could be separated into two separate processes. On this subject, he asked “May the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?”

Summarising the reasoning behind these suggestions, aside from reflecting the difficulties the current process creates for those who cannot afford legal representation, he said that the family justice system should aim to “simplify and streamline” processes. This would make them more pleasant for those involved, more accessible to litigants in person, and cheaper on the whole.

Furthermore, Munby criticised the “injustice” that currently exists in the fact that family courts do not afford the same rights and treatment to cohabiting couples as they do to married couples. When it comes to redistribution of assets, he claimed, the two types of couple should be treated more equally than they currently are.

Summarising his call for an overhaul, Munby said “Reform is desperately needed – has been desperately needed for at least 40 years… Thus far governments have failed to act. Reform is inevitable. It is inconceivable that society will not right this injustice in due course.”

Legal Industry Growth Approaches Pre-Recession Levels

The UK legal services market is showing growth that approaches the levels seen before the recession hit. The industry is now forecast to once again reach 2008 levels next year, according to the latest predictions from the Law Society.

The latest forecasts for the legal services market predict that turnover will experience total growth of 3.8% in real terms through 2014. This compares to growth levels of 3.5% through 2013 and a mere 1.5% over the course of 2012. In 2015, growth in real turnover is expected to leap significantly to a level of 4.9%.

Growth in net exports, which has been affected by changes to the strength of the pound, is expected to show stand at 3% this year. Next year, it is expected to hit levels of 7.9%, a significant increase. Both the emerging and advanced economies are expected to play a key role in driving this acceleration.

This year so far has seen significantly improved performance for both the housing market and the business sector within the UK, and these are both believed to be important driving forces behind increasing growth in the legal industry. According to the Law Society, this trend is expected to continue for the remainder of 2014 and throughout 2015.

According to Andrew Caplen, president of the Law Society, “If household incomes rise as predicted, our members with clients buying and selling property or needing legal advice for their businesses will benefit from housing market and business activity,”

Caplen also said that “High export predictions for 2015 will be welcomed by firms of all sizes having a role in meeting the increased demand for international transactions.”

However, the Law Society emphasised that a degree of caution should still be exercised in interpreting these figures. They are largely based on predictions relating to the average income of UK households in real terms. Specifically, real income is expected to exhibit growth of 2% this year. In 2015, growth in household income in real terms is expected to increase by almost half, reaching levels of 2.9%. Since these forecasts play such a significant role in the Society’s forecasts for the legal industry, any differences between the predicted levels and real-life growth could in turn have a significant impact on the performance of the legal industry. If household incomes fail to grow as expected through this year and next year, this would also mean that the legal industry likely will not experience the level of growth that the Society forecasts.

Settling out of Court- the F1 way

In the UK, litigants are encouraged strongly, by both courts and lawyers, to settle prior to any court hearing. It is standard practice, and very much recommended, for any number of reasons. The best legal outcome is when both sides reach an agreement over the matter in dispute without recourse to the formalities and uncertainties of a court hearing.

Such good advice stretches beyond the UK legal jurisdiction, and beyond the average family or civil matter.

In a German court recently, F1 supremo Bernie Ecclestone recently settled a multi-million pound dispute out of court. Mr Ecclestone, 83, was accused of bribery and corruption regarding a partial F1 sale in Germany several years ago. In April he was accused of paying Gerhard Gribkowsky, a banker at BayernLB, $44m in order that a company Mr Ecclestone favoured would be able to buy a stake in F1. As such, Mr Ecclestone would still be in total control of his F1 empire. Mr Ecclestone has denied the allegations, claiming that he made the payment to Mr Gribkowsky after he threatened to make false allegations regarding the F1 chief’s tax status.

After several months of hearings, the trial was ended in early August. The German civil code allows for trials to be ended upon a making a payment to the court authorities, if the court deems it appropriate given the case and other factors, and agrees to such a measure. This provision exists to ease the burden on the courts, and to deal with cases where a clear verdict might be difficult to arrive at.

Presiding over the Munich court, Judge Peter Noll agreed to end the trial for a payment of $100m; $99m would be given to the Bavarian state treasury, with $1m to children’s hospital. With Forbes placing his wealth recently at $4.2bn (the 12th richest UK billionaire), such a sum is easily affordable for Mr Ecclestone.

As a result, the trial was terminated under German law. Mr Ecclestone was found neither guilty nor innocent, and (crucially) can continue to run F1. Mr Gribkowsky, however, was sentenced to eight and half years in prison for his part in the bribery.

Although perfectly legal, the agreement has attracted some criticism. Writing on the Spiegelonline website, lawyer Franz Bielefeldwrote that it was unusual for the provison to be used half way through proceedings; usually it is invoked at the start of a trial. Further, former politician Sabine Leutheusser-Schnarrenberger criticised the use of the provision, stating that it allowed the rich to go free, and left those not able to afford such payments facing prison. According the former Justice Secretary, it was “not just bad taste – it’s really insolent”.

Bernie Ecclestone, his lawyers- and a very good legal settlement

However, such a (mid) trial agreement was not a total victory for the F1 supremo. In separate hearings, an offer of $34m to end proceedings brought by the bank in question was rejected. Public sector bank BayernLB claims that Mr Ecclestone undervalued its stake in F1 (which it sold in 2005) and collected commissions. With the rejection of the offer, the bank could launch further proceedings, or negotiate another offer.

Although settling out of court prior to any hearings (or, in Mr Ecclestone’s case, half way through the trial) is ideal, and recommended here in the UK, sometimes the consequences can be slightly bizarre, perhaps slightly one sided or unfair, and not totally in the best interests of natural justice.

A trial, with both sides setting forward their case and arguments, and all the facts being discussed in open court, is undoubtedly the best way to settle a legal dispute morally. Practically, however, such drawn out, costly, emotive and time consuming proceedings can be avoided by reaching a settlement prior to any hearing. Whatever the benefits of that, the party with the dominant position (or more money) is often in a position to dictate terms, or to heavily influence any negotiations. It is for each party to weigh up the morality and justice of a trial, with the unfair practicalities of a settlement.

Of such is the nature of UK law; legality and fairness and morality and ethics do not necessarily go together in the legal world.


Cox v Ergo Versicherung AG: a lesson in jurisdiction

How far does the rule of UK law reach? That simple question has been considered and discussed by legal scholars and judges in many previous cases, with interesting answers (sometimes contradictory). In the recent case of Cox v Ergo Versicherung AG (formerly known as Victoria), the Supreme Court added more to that ongoing discussion.

The case concerned the unfortunate matter of Major Christopher Cox. Whilst stationed with the British Army in Germany, he was run over whilst on his bike just outside his base. He later died from the injuries he received. His widow moved back to the UK (where for all intents and purposes they had been living throughout his Army career), eventually remarrying and having two children with her new husband. However, she was still pursuing the driver of the car that killed Major Cox, Herr Gunther Kretschmer, for damages.

From the outset, liability was never an issue. It was found early on that Herr Kretschmer was responsible and culpable for the accident. His insurers also accepted the fact of Herr Kretschmer’s liability, and were prepared to pay damages to the victim’s widow. Despite the great consensus from both parties throughout the case, there was one issue which complicated matters,and which ensured that the case made its laborious way through the legal system for 10 years.

That issue was, essentially, one of jurisdiction.  Jurisdiction is essentially where a legal matter occurred; under what nation’s legal system would a case he heard, tried and judged? In international law, or in matters of international trade or shipping, that answer is never, ever easy, and establishing the simple matter of jurisdiction can take on a life of its own, eclipsing the actual case at hand.  In the case of  Cox v Ergo Versicherung AG, the issue was whether the former Mrs Cox should be awarded damages in line with UK law, or German law.

Under the terms of the UK Fatal Accidents Act (1976), she was entitled to be compensated “in proportion to her loss”, and any subsequent marriage is to be disregarded when awarding damages. Indeed, the Court also had to consider whether her damages might fall under any other legislation or case law.  By contrast, the German Civil Code, known as the BGB, is less generous. Under s.844, essentially the widower would have to be compensated with the intent of restoring her to the financial position she would have been in had the accident not happened. Such proportionality and sense of restitution is a hallmark of the BGB, and the German legal system. The question before the five Supreme Court judges was which legal system should damages be awarded under.

Giving the leading speech, Lord Sumption sums up the case history to date and the relevant legislation. The Court of Appeal had ruled that the UK courts should apply the German legal code in this instance; that was appealed. At paragraph 12 he begins to weigh both arguments up.  Aside from the provisions of the 1976 Act, Lord Sumption also considered the provisions of the  Private International Law (Miscellaneous Provisions) Act 1995. The provisions of those Acts aside, it is eventually established conclusively at paragraph 20 that:

“[The relevant] provisions [of the 1976 Act] do not lay down general rules of English law relating to the assessment of damages, even in personal injury actions, but only rules applicable to actions under the Act itself. Sections 1A, 3(3), 3(4) and 4, which include the provisions relevant to the present appeal, apply only to “an action under this Act”, i.e. to actions brought under section 1. The context shows that the same is true of the other provisions of section 3 (“in the action”). An action to enforce a liability whose applicable substantive law is German law is not an action under section 1 of the Fatal Accidents Act.”

With that firmly established, the rest of the case, and the verdict, falls into place. If the matter does not fall under the 1976 Act, and is neither covered by the 1995 Act, then virtually by default, the principles of the German BGB need to be applied. At 22, one difficulty is raised, and skilfully overcome; namely, the widow’s remarriage, and her receipt of maintenance from her new husband prior to there being any legal obligation for him to do so. In a dense, complicated but skilfully argued chain of legal reasoning, Lord Sumption expertly overcomes this barrier, finding that:

“Purely voluntary payments from someone with no legal obligation to make them cannot be regarded as an alternative to what she has lost. It follows that credit need not be given for it.”

The matter of jurisdiction and the extra territorial application of UK law is raised- and easily dismissed. Although admittedly there are some grounds for UK law to be applied in this case, Lord Sumption navigates around this skilfully. Indeed, he points out at 29 that (essentially and by implication) the matter of the supremacy of the BGB has already been established in lower courts. After applying the relevant case law to the matter under discussion, he still comes to the same conclusion- albeit admitting that in many instances UK law would take supremacy in a similar case abroad.

Despite that, Lord Sumption readily agrees with the lower court- although he comes to the same conclusion by a different method. In a concurring judgement, Lord Mance also reaches the same conclusion- again by a different series of legal reasoning. Mrs Cox’s appeal is overturned- and she was awarded damages in line with the German BGB.

Although concerned with damages, and civil law, Cox v Ergo Versicherung AG raises interesting points of private international law, and jurisdiction. Although ruling that UK law does not apply in this particular matter, the case leaves the door wide open for similar cases involving British citizens (or perhaps property) to be heard under UK law abroad.

Lord Sumption (supported by Lord Mance) refers particularly to the construction of the 1976 and 1995 Acts, and relies heavily on the 2006 case of Lawson v Serco Ltd. Although it is automatically presumed that UK law cannot be readily applied abroad, the construction of the relevant legislation allows that to be the case if the matter at hand has substantive UK ties.  Lord Sumption goes to great length to deny the extra territorial application of the 1976 Act- but does not conclusively state that it  can never happen.

In the matter of private international law, and settling UK related disputes abroad, Lord Sumption delivers a skilful, surgical and detailed blow to that. Despite dismissing such extra territorial claims, he does not conclusively rule against such claims ever being allowed. As such, Lord Sumption is (more by accident than design) maintaining the legal status quo, in keeping the possibility of such cases being successful open, while emphatically dismissing this particular claim. Whilst seeming to be bold and decisive, Lord Sumption is actually being legally cautious. That is surprising, as it is normally Lord Neuberger (very quiet in this case) who is the cautious member of the Supreme Court, not Lord Sumption.

New Forced Marriage Laws Take Effect

New laws have now taken effect in England and Wales making it a specific offence to force somebody into a marriage. Campaigners have said that this offence sends “a powerful message.”

Parents who force their children into a marriage against their will could face punishments of up to seven years imprisonment. Beforehand, civil orders to prevent forced marriages were the only tools in courts’ hands for the protection of victims.

The government dealt with well over a thousand separate cases last year. 2013 saw the Forced Marriage Unit deal with 1,302 cases in all. In 82% of these cases, the victims were female, and the remaining 18% involved male victims. 15% of all victims were under the age of 15.

The new laws come under the Anti-social Behaviour, Crime and Policing Act 2014. They will not only protect people forced into marriage in England and Wales, but also UK nationals who face the risk of being forced into marriages abroad. According to ministers, the law will protect thousands of people every year and also boost victims’ confidence and encourage them to come forward.

According to Theresa May, Home Secretary, forced marriage is “a tragedy for each and every victim.” May said that criminalising the practice represented “a further move by the government to ensure victims are protected by the law and that they have the confidence, safety and the freedom to choose.”

Meanwhile, Jasvinder Sanghera, founder of the charity Karma Nirvana, called the criminalisation of forced marriage a “historical day and the right move.” She went on to stress the importance of victims coming forward to report what they had been through. Sanghera emphasised that “nobody is going to be forcing you to prosecute or criminalise your parents. Reporting is the first thing you have to do and it will be your choice to pursue a criminal justice process.”

The law has also made it a criminal offence to breach a forced marriage protection order, an order that courts can issue to prevent forced marriages from going ahead. Acting against such an order now carries a maximum sentence of five years’ imprisonment.

The definition given of a forced marriage is “one in which one or both spouses do not consent to the marriage but are coerced into it.” Such coercion may take the form of “physical, psychological, financial, sexual and emotional pressure.” A marriage may also be defined as forced without coercion being involved “in the cases of vulnerable adults who lack the capacity to consent to marriage.”