insurer in line of fire over client capture

Transcription

www.lawgazette.co.uk
17 November 2014
ABC 116,250
INSURER IN
LINE OF FIRE
OVER CLIENT
CAPTURE
By John Hyde » A personal injury
specialist is preparing for a Court of
Appeal showdown with an insurer
that went behind its back to settle
claims.
Gavin Edmondson Solicitors, based
in the north-west, alleges that Haven
Insurance acted unlawfully on three
counts when it made a direct offer of
compensation to six clients in 2012.
The insurer does not dispute that
it has offered settlement to clients
knowing that they had instructed
solicitors, but denies any unlawful
behaviour.
The law firm told the Gazette that
Gibraltar-based Haven has operated
this way since 2009, meaning that
hundreds of claims with other personal injury firms could be reopened
if it wins the appeal.
The clients had all been signed on
conditional fee agreements (CFAs)
and their cases lodged via the Road
Traffic Accident portal.
But the insurer then used information in the portal to make direct offers
of between £1,900 and £2,350 – effectively ending the clients’ involvement
with the law firm.
In August the High Court found
there was nothing preventing any
direct contact or settlement between
the clients and insurer. His Honour
Judge Milwyn Jarman QC ruled that
CFAs did not prevent any direct contact or settlement and that the insurer
acted with explicit consent and for the
administration of justice.
Skeleton papers filed at the Court
of Appeal earlier this month by Gavin
Edmondson allege that Haven staff
were ‘individually incentivised’
to get clients to settle directly. The
papers allege Haven acted unlawfully
by denying the claimant firm costs,
inducing a breach of contract and
misusing confidential information
obtained through the portal.
The papers include partially transcribed recordings of telephone calls
with the clients, in which one Haven
adviser says the settlement offer will
Continued on page 2
Roche’s Funke Abimbola: ‘The number of private practice lawyers wanting
to move in-house far exceeds the opportunities’ Roundtable, p12
17
How to be
a senior
partner – an
effective and
respected firm
ambassador is
a leader not a
dictator
Rozenberg p11
Legal privilege
safeguards and
the role of the
security services
I have seen no
reduction in the
overall number
of fraudulent
claims p10
09 Comment
22 Jobs
21
My legal life –
Richard Hosley
discusses his
deployment
to Iraq as the
legal adviser
to an infantry
battalion
‘Virtual’ judge hears jury verdict via Skype
By Monidipa Fouzder » A jury has
delivered its verdict before a ‘virtual’
judge appearing on screen, in what is
believed to be the first time a judge has
not been physically present in court
to hear a verdict in a criminal case.
HH Judge John Tanzer appeared
via Skype at Croydon Crown Court
on Tuesday, when a teacher was
1 Cover.indd 1
acquitted of sexual offences.
Doughty Street Chambers’ Liam
Walker, who represented the teacher
and was instructed by Robert
Dynowski, partner and head of the
criminal department at Steel and
Shamash, said: ‘The judge gave
advance notice of possibly using technology to take a verdict remotely, and
invited us to take instructions.’
The jury returned a not guilty verdict on one of the counts, for which the
judge was present. ‘The judge rose and
stated that he would ensure he was
contactable via Skype through secure
Wi-Fi,’ Walker said.
Counsel were told later that the
judge was at an official commitment,
and that the jury had a verdict on the
remaining counts. Counsel connected
to the court Wi-Fi and contacted the
judge, whose image was projected on
to large screens.
The jury entered court and found
the defendant not guilty on the
remaining counts. The judge then
discharged the defendant.
13/11/2014 18:18
IN BRIEF
2 NEWS
The Ministry of Justice
has asked the Civil
Justice Council to examine technical revisions
to damages-based
agreements, permitted
since April 2013 as part
of the Jackson civil litigation reforms, but has
ruled out any provision
for hybrid arrangements.
QUOTES
Brazilian lawyers will
be heading to London
this month to work
alongside their UK
counterparts under an
exchange programme
set up by the Law Society, Bar Council, BPP
Law School, Ordem dos
Advogados do Brasil and
Lex Anglo-Brasil.
‘You have a lord
chancellor whose
idea of the “rule of
law” is to deprive
what he describes as
“foreigners” of access
to the courts’
Sir Alan Moses
See page 8
‘It is no accident that
the overwhelming
majority of
complex, difficult
and important
cases which come
before our courts
are conducted by
barristers’
Nicholas Lavender QC
See page 8
‘The external firms
are an “extension” of
my in-house team.
I am trying to bring
them to the party by
saying you need to
work together as a
seamless legal team’
Deborah Grimason,
Travis Perkins
See page 12
‘The marines had to
make life and death
decisions every day.
My job was to guide
them through the
legal minefield’
Richard Hosley,
Hogan Lovells
See page 21
2 news.indd 2
17 November 2014
Litigation deluge to
follow banking fines
By Gazette newsdesk » A tidal
wave of civil litigation is in prospect
after City watchdog the Financial Conduct Authority fined five banks a total
of £1.1bn for rigging the £3.4trn-a-day
foreign exchange market (Forex).
The five – Citibank, HSBC, JP Morgan Chase, Royal Bank of Scotland
and UBS – can expect to be hit by
claims from clients including pension funds, foreign property owners
and other foreign exchange houses,
according to solicitors who have been
lining up litigants for two years.
Banking law specialist Kalvin Chapman (pictured), of Manchester-based
firm Berg, said: ‘We were first contacted by a property owner with a foreign exchange mortgage in December
2012. I think everybody has taken the
sensible decision to wait until the final
notice was published, but I would
expect to see the first pleadings being
issued within six months.’
Berg expects the final notices to
play a key role in litigation, because
a vital component of any successful
action will be proving that a bank
behaved in such a way that it profited
at the expense of its customers.
The FCA statement said: ‘It is completely unacceptable for firms to
engage in attempts at manipulation
for their own benefit and to the potential detriment of certain clients and
other market participants. Our final
notices include examples where
each bank’s trading made a significant profit.’
The final notices also contain
references to collusion between
traders at different banks using
online messaging. The FCA cites
one example of such manipulation which netted
Citibank a profit
of £62,581 and
another in which
HSBC banked
£102,425.
Insurer
Continued from page 1
be a bit less ‘because of the fact that
solicitors get kept out of it so we don’t
have to pay their fees’.
Gavin Edmondson said the High
Court’s verdict that claimants need
to show proof of ‘collusion’ between
clients and insurers set a ‘more or
The notices could prove a boon for
those bringing cases because they also
contain examples of traders congratulating themselves after successfully
manipulating Forex rates. This, from
one UBS trader, is typical: ‘The best
fix of my UBS career’ – after he used a
chatroom to move rates to produce a
profit of £328,100 for UBS.
Simon Hart, banking litigation
partner at City firm RPC, expects
claims to be significantly higher than
those under previous ‘benchmark’
rigging cases such as Libor.
He said: ‘We anticipate a much
larger number of high-value disputes
against the banks because of Forex
manipulation than we saw over Libor
rigging, because it should be much
easier for market participants to
prove that they lost money.’
The banks fined last week,
along with Barclays and six
others, are already being
sued for alleged Forex rigging in the US by a group of
investors including several
pension funds. Claimants
include the £2.9bn City
of Philadelphia and its
Board of Pensions and
Retirement, the £1.2bn
Oklahoma Firefighters
Pension and Retire-
ment System, and the £2.2bn StateBoston Retirement System.
According to Chapman, the wealth
of documents that regulators will have
amassed during their investigations
could also prove invaluable to claimants. He said a natural next step will
be third-party disclosure of FCA files
relating to the investigation as well
as disclosure of all bank documents.
Chapman believes some groups
of bank shareholders are also considering legal action. ‘The decisions
today cover the period January 2008
to October 2013. The first questions
about the Forex markets were in 2012,
but you have bank boards who have
sat through PPI, swaps and Libor.
So you have to ask: what were they
doing?’
Chapman believes the Treasury
should use the £1.1bn in Forex fines to
compensate past victims of financial
scandals. He said: ‘We still have clients who have not been compensated
for swaps, so why is this money going
to the Treasury and not these SMEs?’
Tracey McDermott, FCA director
of enforcement and financial crime,
said: ‘Firms could have been in no
doubt, especially after Libor, that
failing to take steps to tackle the consequences of a free-for-all culture on
their trading floors was unacceptable.’
less impossible standard’ and limited
action to only the most exceptional
cases.
‘There was no consent from any
data subject,’ the papers said. ‘Explicit
consent is required in the case of sensitive personal data. The defendant
thereby acted unlawfully.’
Daniel Higgins, head of costs at
Gavin Edmondson, said ‘numerous’
law firms have made contact since
August regarding Haven approaching
their clients directly. The firm is asking for more to come forward to get a
sense of the scale of claims affected.
Haven has until later this month
to respond, with the Court of Appeal
hearing not expected until the new
year. It declined to comment when
approached by the Gazette.
13/11/2014 18:18
NEWS 3
17 November 2014
LCJ: name
defendants
in all cases
By John Hyde » The lord chief
justice has said he never wants to
see defendants being tried anonymously in English courts. Speaking
at his annual press conference, Lord
Thomas of Cwmgiedd (pictured)
called for clearer rules and guidance
for keeping evidence and details of
trials secret.
His call followed the collapse for
undisclosed reasons of a controversial trial of a man accused of preparing acts of terrorism. The defendant,
Erol Incedal, was named in June only
after the Court of Appeal overturned
PRISON CALLS
RECORDED –
GRAYLING
»
Conversations
between prisoners
and their lawyers
have been
accidentally
recorded, justice
secretary Chris
Grayling has
admitted. He told the
House of Commons
in a statement that
an investigation
has found a ‘small
number’ of cases
where a call between
the prisoner
and their legal
representative was
recorded because of
the default setting
on prison telephones.
The justice
secretary said the
ability to record
calls was important
to ensure that
prisoners do not
continue their
involvement in
criminality. However
recording calls
between prisoners
and their MPs or legal
representatives was
‘unacceptable’.
3 newsx.indd 3
the government’s request to hold the
entire trial in secret.
Asked whether this possibility could
arise again in the future, Thomas
made it clear he wants to see defendants named in all cases. ‘There ought
to be clear guidelines and rules so the
prospect of an anonymous defendant
is one I would hope we never see again
in our courts,’ he said.
In a wide-ranging discussion covering everything from judicial review to
the European arrest warrant, Thomas
said quotas for under-represented
groups in the judiciary are ‘not nec-
essary’ so long as other action is being
taken. ‘I think there are huge disadvantages in them and other proposals
that, in a sense, upset what is probably
regarded as the finest judiciary in the
world.’
He also warned of serious consequences if investments in court infrastructure were hit by spending cuts.
‘We are reaching a situation where if
we don’t invest and if that doesn’t go
ahead the justice system would face
a severe crisis,’ said Thomas.
He described court IT systems as
‘wholly inadequate’.
He added that the legal profession
would have to look ‘pretty radically’ at
how to administer justice at a reduced
cost: ‘We need to look in certain areas
at a more inquisitorial procedure.’
Agency wrong to deny legal Ombudsman ruling
aid in wrongful arrest action »
By John Hyde » The High Court has
ruled that the Legal Aid Agency was
wrong to deny legal aid to a woman
taking action against the Metropolitan Police for what she alleges was
wrongful arrest.
Sunita Sisangia was arrested for
alleged harassment in 2011 after a
dispute with a neighbour two weeks
previously. She claims she was not told
why she was under arrest, was denied
her medication for four hours and
was provided with no food between
9.53am and her release at 3.45pm. The
police later decided no crime had been
committed.
The Independent Police Complaints
Commission upheld some of Sisangia’s complaints, but after she applied
for public assistance last year she was
told her claim for false imprisonment
did not fall within the provisions of
the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO),
despite a provision in paragraph 21
that funding should be granted in
cases of abuse of position or powers
by a public authority.
In a letter to Sisangia, the director
of legal aid casework for the Ministry
of Justice said ‘arresting someone in
the normal course of one’s duty is not
abuse’.
However, sitting in the High Court,
the Honourable Mr Justice Dingemans said last week that paragraph
21 offered ‘no relevant ambiguity
or obscurity’ which would support
the government’s position. To reject
an application, he added, would go
against the intention of parliament
when drawing up LASPO.
Trudy Morgan, solicitor at London
firm Hodge Jones & Allen, which represented Sisangia, said: ‘Practitioners
have noted an increasing tendency for
the LAA to focus on reasons to refuse
funding, presumably in a bid to further reduce the legal aid bill. If this is
indeed the case, it means that there is
a real danger of narrowing the scope
of funding beyond what was intended
by parliament.’
The High Court has ruled that a law firm is
responsible for a complaint to the Legal Ombudsman about a sole practice it had acquired, dating
from before the acquisition. London firm Kerman
& Co sought a judicial review after being informed
that the ombudsman had jurisdiction to deal with
a complaint arising from service given by sole
practitioner firm PS Levy & Co to the Emanuel
Davis Trust.
The Honourable Mrs Justice Patterson said:
‘As Kerman & Co LLP received the benefit and
goodwill of the business it cannot be unfair, in my
judgment, if they also have to accept the burden.’
â See lawgazette.co.uk/news
Keep women out of jail
» Justice minister Simon Hughes will open talks
with local authorities in January to discuss a
strategy to divert women offenders away from
custody. Of the 85,625 prisoners in England and
Wales, 3,902 are women. Most female prisoners
are serving short sentences for non-violent ‘petty’
crime, with two-thirds serving sentences of six
months or less.
Hughes was taking part in a panel discussion to
launch a Halsbury’s Law Exchange and LexisNexis
report entitled Women in Prison: is the penal system fit for purpose?.
The report, written by Felicity Gerry QC and
Lyndon Harris, says there are strong social and
economic benefits to keeping women out of prison.
â See lawgazette.co.uk/news
13/11/2014 17:54
4 NEWS
Costs branded
‘grotesque’
17 November 2014
Link in mobility chain
By John Hyde » A High Court judge
Court a seven-day trial.
‘The time has come when the lawhas called for a cap on costs after a
divorcing couple racked up a bill of makers in this country, whether they
are legislators or judges, must stop
almost £1m contesting assets.
Mr Justice Mostyn last week saying something must be done and
described as ‘madness’ a case where actually do something,’ said Mostyn.
He said new rules must come into
lawyers and experts were paid a total
of £920,000 during a dispute over force to impose a costs cap on fees
charged by lawyers and set
assets worth around £2.9m.
By the time of a financial ‘ONLY IF STEPS fixed fees for each stage of
litigation.
dispute resolution meeting ARE TAKEN
The judge added: ‘In my
in April 2014, the parties WILL THE
opinion only if these two
had already spent £226,000 GROTESQUE
steps are taken will the groon costs.
LEECHING
tesque leeching of costs, such
This was largely due to a OF COSTS BE
as has occurred in this case,
deputy district judge decid- ARRESTED’
be arrested.’
ing to allow each party to
Mostyn also noted that tougher
appoint their own expert to value the
husband’s business interests. In the rules might encourage more people
event, forensic accountants filed six to opt to employ a lawyer rather than
expert reports and a joint statement, be self-represented as they seek expert
advice on how much their case will
charging £154,000 in fees.
A further £700,000 was spent on cost.
He intends to bring this judgment
costs – a figure Mostyn described as
to the attention of the president of the
‘staggering’.
The result, he added, has been to Family Division.
The two parties were represented
make a case that was ‘surely so easily
settleable almost impossible to com- by DWF LLP and Merrick Solicitors.
promise’, and to impose on the High Both declined to comment.
Firm pulls ‘offensive’ ad
By John Hyde » A law firm’s advertisement for clinical negligence claims
has been taken off air after complaints
to the Advertising Standards Authority. The authority ordered north-west
firm Michael W Halsall, trading as
claimthroughus.com, to take down
the TV advertisement and ensure
future advertisements are not likely
to cause offence.
The firm said it took the advertisement off air voluntarily after it had
been informed of complaints.
The ad featured a diagram of a pregnant woman surrounded by the labels
‘birthing injury’, ‘cerebral palsy’ and
‘forceps injury’. A drawing of a doctor
inside an orange warning triangle was
then shown.
A total of 15 complaints were
received, including from expectant
mothers who said the ad was likely to
cause undue fear or distress to pregnant women. Other complainants said
people who had suffered problems
during pregnancy may be offended.
ELIXIR OF LIFE
Sociologist requires status update from the Kashmiri
solicitor [Domiciled in Notting Hill] and specialising
in Immigration Law.
The above references our meeting on April 5th 2014.
Contact: Jeff likeanavajo@hotmail.com
4 news.indd 4
» City firms Baker & McKenzie
and Linklaters are among 12
‘champions’ of social mobility
named by deputy prime minister
Nick Clegg. Both are signatories of
the government’s Social Mobility
Business Compact, which encourages employers to offer young
people fair and open access to
employment opportunities.
Linklaters partner Simon Branigan said: ‘Lawyers’ firms have been
seen as slightly behind the curve,
which is not always justified as
there are firms like ours that do an
awful lot more than people realise.
If we, a magic circle firm, can do
this, there’s no reason why others
who have the same energy and
resources, can’t either.’
IN BRIEF
JAIL FOR
BOGUS
SOLICITOR
An unemployed man
who pretended to be
a lawyer to try to get
a £19,000 tax debt
cancelled has been
jailed for 18 months
for forging a county
court judgment and
six months for impersonating a solicitor.
Nicholas Moss, 51,
forged a document
purporting to be a
judgment by the head
of the Family Division.
GREAT SCOT –
IT’S 11,000
The number of
practising solicitors
in Scotland has
reached an all-time
high of 11,000, of
whom 49% are
women and 56% are
under 45, the Law
Society of Scotland
said.
1861 ACT SET
FOR REFORM
A consultation
on reforming the
Offences Against
the Person Act 1861
has been opened by
the Law Commission. One proposed
option is to implement a draft reform
bill produced by the
Home Office in 1998.
The closing date for
responses is 11
February.
HMCTS’ NEW
DIRECTOR
Management
consultant Victoria
Cochrane has been
appointed a non-executive director of
HM Courts & Tribunals Service.
EURO DNA
DATA DEAL
Britain has agreed
to share its DNA
database with EU
police forces as part
of a deal to overcome
Spanish objections
to the UK opting back
in to 35 EU crime and
policing measures,
including the European arrest warrant.
PARENTAL
SUPPORT
Legal document pioneer Rocket Lawyer
UK said it continues
to rely on its US
parent for support
after disclosing in
its accounts that its
liabilities exceed its
assets.
13/11/2014 17:41
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6 BAR 2014
17 November 2014
Criminal bar
calls for ‘level
playing field’
By Paul Rogerson » The Criminal
to practise in the Crown court with as
Bar Association has launched a cam- few as 22 hours of such training.
Cross told the Gazette afterwards
paign aimed at ‘levelling the playing
field’ between barristers and solici- that the CBA’s campaign will demand
tor-advocates, who it alleges enjoy an that the ‘playing field be levelled’ by
regulators so barristers have the same
unfair competitive advantage.
Tony Cross QC, chair of the CBA, opportunities to compete for work as
told the Bar Conference that junior higher court advocates.
Updating CBA members last Monbarristers are being denied access to
the cases that would enable them to day, Cross said: ‘We fear that some
advocates are doing work
become tomorrow’s QCs
beyond their competence.
and judges because of a ‘WE FEAR THAT
“Straw juniors”, referral
damaging imbalance in SOME ADVOCATES
fees and fee-sharing are
practising rules.
ARE DOING WORK
all practices which are
Cross alluded to a BEYOND THEIR
denying the client the
report on criminal advo- COMPETENCE’
best-quality representacacy earlier this year by
Sir Bill Jeffrey, which noted a ‘marked tion, for no other reason than ecoshift’ in the distribution of advocacy nomic necessity.’
He added: ‘Referral fees have been
work in the Crown court away from
the bar, with ‘many more solicitor-ad- outlawed in some civil cases. There is
vocates than there were in the years no good reason why it should not be
following the liberalisation of the unlawful in crime. Similarly, fee-sharing is abhorrent and should be outrights of audience’.
Jeffrey also highlighted the fact lawed. It is time for the regulators to
that a barrister needs to have com- deal with these pressing issues.’
Cross said he and CBA colleagues
pleted 120 days of advocacy training,
whereas a solicitor can be accredited will tour circuits and chambers to
Tony Cross QC
gather evidence of the ‘injustices’ barristers face. He also hopes to begin a
dialogue on a ‘joint approach’ with the
Criminal Law Solicitors’ Association.
But his comments met a frosty
response from the London Criminal
Courts Solicitors’ Association, which
accused the CBA of taking ‘cheap
shots’ at solicitor-advocates.
In his inaugural speech as association president, Jon Black of BSB Law
said: ‘There needs to be an understanding that solicitors are not appearing in
the Crown court for the sake of cutting
out the bar. But because we need to,
want to and are capable of doing so.
‘We shan’t pander to elitist notions
that we are not able to bat for the first
11, or… that we must certify clients
have been notified that they could
use a “real barrister” instead of the
“imposters” that call themselves solicitor-advocates.
‘Let’s avoid cheap shots aimed at
solicitor-advocates, when the reality
facing access to justice lies elsewhere.’
Barristers urged to seize litigation opportunity
» Barristers
should seize the opportunity to conduct
litigation because when clients see a
choice of a direct-access practice and
a law firm, ‘it’s got to be the barristers
every time’, the founder of a pioneering practice told the conference. ‘The
public knows what a wig means, we are
our own best USP,’ Amanda de Winter
(pictured, second left) founder of high
street practice Barristers & Co, said.
The session on ‘Litigation: expanding opportunities for the bar’ heard
that the Bar Standards Board had so
far approved only 129 barristers to
conduct litigation. However, Patricia
Robertson (second right), vice-chair
of the BSB, said that she expects more
practitioners to enter the field in competition with solicitors as regulated
barrister entities become reality. ‘Litigation is now up and running and
live, and entities will be happening
next year,’ she said.
By Michael Cross
6 bar.indd 6
Barristers seeking to conduct litigation pay a £90 one-off fee and have to
demonstrate that they have systems
in place to administer and manage litigation. They must also demonstrate
‘knowledge and training’ in the area,
which may come from being employed
by a law firm or from experience acting
in public access cases where the client
is conducting the litigation themselves.
Vanessa Davies (centre), director
of the BSB, said the regulator expects
approval from the Legal Services Board
to begin licensing barrister-only entities ‘in a matter of weeks’ and would
open its doors to applications from
the beginning of January. However,
progress towards becoming a regulator
of alternative business structures is
‘a little more protracted’, Davies said.
The BSB intends to submit its application to the LSB before Christmas and
expects this to take six months to be
approved. ‘We are making best efforts
to telescope timescales as much as we
can,’ said Davies, and while the ‘LSB
has learned a lot’ from its experience
with regulators such as the SRA, ‘it’s
slower than we would like it to be.’
De Winter said that the advantages
for clients of conducting litigation
through a barrister included a fixed
fee and not having a different lawyer
presenting the case in court. ‘This
is a gift, an opportunity to level the
playing field,’ she said. The general
public didn’t really understand why
a barrister couldn’t do the same job
as a solicitor, and now I don’t have to
say that any more.’
13/11/2014 11:21
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13/11/2014 13:11
8 BAR 2014
17 November 2014
Lavender – advocacy fees
row ‘has turned a corner’
By Gazette newsdesk » The
long-running dispute between the bar
and the government over advocacy
fees and other cuts ‘may have reached
a turning point’, the leader of the bar
said last week.
Addressing the annual Bar Conference in London, Nicholas Lavender QC
(pictured), chairman of the Bar Council, said that after a year of ‘unprecedented’ action against cuts in advocacy
fees ‘we have reached a turning point’.
‘Now our communications with the
government take the form of positive
and hopefully constructive dialogue,’
he told the opening session. ‘In the
civil field, people are coming to see
that the cuts have gone too far, and
that something must be done.’
The effect of the Legal Aid, Sentencing and Punishment of Offenders Act
(LASPO) was to deny legal help to over
400,000 people a year, or over 1,000
people every single day, he said.
In the year before LASPO came
into effect on 1 April 2013, there were
573,000 new cases of individuals
receiving some form of legal help on
legal aid. ‘Yet in the year after LASPO
came into effect, there were only
172,000 such cases. Over 160,000 of
those 400,000 people a year are husbands and wives involved in family
disputes.’
Despite the cuts, Lavender was
bullish about the bar’s future. In an
implied comment on the role of solicitor-advocates, he said: ‘It is no accident that the overwhelming majority
of complex, difficult and important
cases which come before our courts
are conducted by barristers.’
He also quoted the report of Sir Bill
Jeffrey earlier this year, who found
that the main area of circuit judges’
concern was ‘relatively inexperienced
solicitor-advocates being fielded by
their firms (for what were presumed
to be commercial reasons) in cases
beyond their capability.’
One reason for optimism about the
bar is that ‘we are prepared to adapt’,
he said. ‘That is not to say all change
is good. But change happens and we
have to deal with it.’
One example of change that had
been taken on board was the ending
of old-style undefended divorces. ‘We
dealt with it, and there are many more
barristers practising in the field of
family law than in the 1960s.’ Another
is the arrival of the chambers chief
executive – and direct access to the
public without the medium of a solicitor.
‘We have survived Oliver Cromwell,
and we have survived Judge Jeffreys,’
Lavender said. ‘And I believe that we
will survive anything which this or
any other government throws at us.’
Moses targets Grayling on ‘rule of law’
» Former lord
justice of appeal Sir Alan Moses drew
spontaneous applause at the Bar
Conference with a withering attack
on lord chancellor Chris Grayling.
Sir Alan (pictured), now chair of
the new Independent Press Standards Organisation, alluded to the
threat to the bar posed by having
non-lawyers in senior positions at
the Ministry of Justice.
Delivering the closing keynote
speech, Sir Alan said: ‘I hope the
public appreciates the need to cherish and cultivate those who seek to
provide powerful and independent
advocacy.
‘This is all the more important
today when you are faced with no
one in power and authority ready to
speak up on your behalf. You have
a lord chancellor whose idea of the
By Paul Rogerson
8 bar.indd 8
“rule of law” is to deprive what he
describes as “foreigners” of access to
the courts, supported by a permanent
secretary [Ursula Brennan] who is
not a qualified lawyer.
‘Was that envisaged in the 2005
[Constitutional Reform] act [which
reformed the role of lord chancellor]?’
Sir Alan was among the judges who
in July thwarted the lord chancellor’s
attempt to restrict the availability of
legal aid to people who could show
they had lived in Britain for at least a
year. The High Court ruled that this
amounted to unlawful discrimination.
Sir Alan also took aim at the government over the sackings of law
officers Dominic Grieve QC and
Sir Edward Garnier QC, and their
replacement with relatively inexperienced barristers.
Both were perceived to have paid
the price for their defence of the
Human Rights Act. Sir Alan added:
‘Did you believe in all your lifetime
you would see the government’s two
leading lawyers lose their jobs because
they gave their genuine opinion?’
Grieve was succeeded by junior
barrister Jeremy Wright MP, the first
non-QC in living memory to hold the
post (he received the rank on his promotion). Robert Buckland MP, a door
tenant at 23 Essex Street, became
solicitor general in July, replacing
Oliver Heald.
Sir Alan conceded that the two
‘young men’ may prove highly distinguished occupants of the roles, but
added: ‘They did not manifest their
distinction by knocking around the
courts or appearing in front of juries.
Do you expect them to speak up on
your behalf ?
13/11/2014 11:21
OPINION 9
LEADER
Gainfully Employed
COMMENT
17 November 2014
Entering troubled waters
In-house
lawyers are
adept at
managing
structural
change
Jack
Hatcher
A shift in
policy on
the rescue
of persons
in distress
at sea raises
urgent
questions of
international
law
9 Comment.indd 9
B
y any measure, the in-house legal
sector is in a good place. Its numbers grow year on year and senior
corporate counsel are extensively
courted by private practice.
Competition for many in-house
vacancies is fierce. The days when
moving in-house meant a lawyer
had ‘failed’ are distant.
How did we get here? Common assumptions vary.
Some note that law firms woke up to the fact that
patronising the client who pays your fees is bad politics. Maybe young lawyers realised that the narrow
range of cognitive skills that took one to the top in
a City practice were not ‘all that’. And in a serious
A
mid the furore
surrounding
the decision by EU
ministers to
end support
for searchand-rescue
operations for migrants in danger
of drowning in the Mediterranean,
much attention has been directed to
the moral issues this raises.
The Home Office has defended
this position, arguing that these
operations act as a ‘pull-factor’ for
migrants and that the inevitable consequence of leaving people to ‘sink
or swim’ will be a reduction in the
readiness of migrants to attempt the
perilous crossing from north Africa.
There has been much condemnation
of this position, but behind this lies
the further question of how tenable
the ministers’ position might be in
the light of international law.
The International Chamber of
Shipping issued a statement saying
that the rescue of all persons in
distress at sea – including illegal
migrants – is ‘an obligation under
international maritime law, as well
as a humanitarian duty’. It said:
‘Whatever may be decided by policymakers in EU member states, the
legal and humanitarian obligation of
merchant ships to provide assistance
to anyone in distress at sea will
remain unchanged.’
The phenomenon of people taking
to the seas in search of safety, refuge
and better economic conditions
economic downturn, private practice was suddenly a
less stable place to be.
But here’s one to add to that list. Listening to
attendees at the latest Gazette roundtable (page 12), it
became clear that none had been providing sanctuary for lawyers disconcerted by traumatic changes
in private practice. Most had a narrative of radical
changes wrought to meet a crowded field of major
challenges on a tight budget.
But that process of practical and structural adjustment has not produced the levels of angst, or doubts
about their ‘model’, that has attended ‘mirror’ events
in private practice.
The rest of the profession may have something to
learn from the way change is managed in-house.
is not new. The mass exodus of
Vietnamese boat people throughout
the was followed in the 1990s by
large-scale departures from places
such as Albania, Cuba and Haiti. The
Mediterranean is now one of the
most common areas where refugees
in distress are rescued, often from
overcrowded and unseaworthy craft.
The duty of the master in this
instance is to render assistance
without regard to nationality, status
or circumstances in which such
people are found. This is a maritime
tradition as well as an obligation
enshrined in international law under
the UN International Maritime
Organization’s (IMO) Safety of Life
at Sea Convention, to which virtually
every maritime nation is a party, as
well as the convention on Maritime
Search and Rescue. However, this
obligation of a vessel’s master to
render assistance is complemented
by a corresponding obligation on
IMO member states to co-operate in
rescue situations, thereby relieving
the master of the responsibility to
care for survivors, and allowing
individuals who are rescued at sea to
be delivered to a place of safety.
There is some ambiguity over
what the obligation of individual
states means in practice. What
is clear is that they are required
to co-ordinate and co-operate
with masters to ensure that ships
providing assistance by embarking
persons in distress are released from
their obligations with minimum further delay to the intended voyage, as
well as arranging disembarkation to
a ‘place of safety’ as soon as possible
even when they may lack documentation.
How the provisions of such international agreement affects a state’s
obligation to provide direct search
and rescue is a different matter. For
the EU and the question of migrants
in distress in the Mediterranean,
while it will be much more difficult
for merchant ships to save lives at
sea without the adequate provision
of search and rescue by member
states, a question remains over both
the legal and humanitarian obligations of such states to continue to
provide these services.
Arguments that international
law aimed at ensuring that those
in distress at sea are offered every
assistance and protection must apply
to all those in such a situation is persuasive on humanitarian grounds.
The challenge that EU member
states face in light of this recent policy statement is how to justify what
is, on its face, a unilateral derogation
from the international obligations
to which they are party solely on the
grounds of domestic immigration
policy. It will be a regrettable situation where masters of vessels offering assistance in accordance with
international law can no longer rely
on the support of EU member states
both at sea and at point of disembarkation in a place of safety.
Jack Hatcher is a solicitor at Hill
Dickinson
13/11/2014 11:43
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10 letters.indd 10
LETTERS
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Law Society telephone 020 7242 1222
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Flawed on fraud
The arguments advanced to explain job losses in solicitors’ fraud
departments are misconceived
» I note the speculation among correspondents (Gazette, 10 November) that job losses in solicitors’ fraud departments are because (a)
there was never really so much fraud around in the first place and/or
(b) insurers are now paying fraudulent claims because it is cheaper
than fighting them. Both arguments are misconceived.
First, more than 50 years ago, C Northcote Parkinson explained
precisely why the amount of work to be done and the number of
people doing it are not related. However, I have seen no reduction
in the overall number of fraudulent claims. There are changes in
typology, for example the large increase in attempts to claim for
industrial deafness (either instead of, or as well as, whiplash) but,
on the whole, the percentage of fraud is at least the same, and
arguably greater, than it was.
Second, on the arguments presented, it is equally possible that
insurers are refusing to pay many portal claims and those claims
are going away – not so much that it is cheap for D to pay, but that
it is unprofitable for C to litigate. Of course, modesty forbids one to
speculate that insurers’ enhanced ability to root out fraud is due to the
excellent training they have had from their lawyers.
James Pinder
Partner and national head of counter-fraud insurance, DWF
Justice must be seen to be done
» Christopher Digby-Bell’s tribute to Fiona Woolf (Letters, 10 November) is a touching example of loyalty, but I would respectfully suggest
that he has completely missed the point.
I have never met Ms Woolf, nor have I dealt with her in her professional capacity. All I know, therefore, is what I have gleaned from
various articles in the Gazette and other publications, which is that
she seems to be a perfectly nice woman. Also, from the plethora of
comments about her in the press, I do not think that doubt was ever
cast on her ability as a lawyer. Indeed, I do not agree with some commentators that Ms Woolf’s ‘day job’ as a corporate lawyer rendered
her incapable of dealing with an inquiry involving children and the
crime of sexual abuse. The legal skills we solicitors develop over years
of assimilating and disseminating fact are, in the right hands, easily
transferable to other areas in which we have no previous or particular
expertise.
We are all aware of the maxim that not only must justice be
done, but that it must be seen to be done. In my view, it was the
latter part of that statement that caused the problem with Ms Woolf’s
appointment.
Even allowing for the media’s hyperbolic tendencies, there seems
WRITE
little doubt that thousands of vulnerable children and adults were on
TO US
the receiving end of inexcusable treatment from those in positions
All letters
of trust. As if that were not bad enough, the complaints of those who
(maximum
350 words) were able to report such behaviour appear to have been routinely
must include dismissed, or the complainants classed as liars.
Whether all or any of these allegations are upheld can
a full postal
address and only be as a consequence of a rigorous, binding investigation, which has to be headed by someone who
be sent to:
has the complete trust of those affected. Had she
Editor in
remained as chair of the inquiry, how did Ms Woolf
Chief,
Law Society honestly think any questioning of the government
minister with whom she is on the same dinner
Gazette,
19 Bell Yard, party circuit and Christmas card list would
be perceived?
London
On the lesser point of committing the
WC2A 2JR
huge amount of time that would be
LDE 100
required to do the job properly, how did
or paul.
Ms Woolf think she would incorporate
rogerson@
it into the presumably substantial
lawsociety.
demands of her day job?
org.uk
17 November 2014
Those who allege these dreadful acts have a right to believe
that their voices will be heard by
someone they can be sure will not
be influenced by ‘the old pals act’.
I do not believe that Ms Woolf’s
personal integrity would allow
this, but this is not about me and
it certainly isn’t about her. It
never has been. It is about those
who are owed the assurance of
seeing that justice has been done,
and in his well-meaning panegyric this basic point seems to have
eluded Mr Digby-Bell.
Elainne M Lawrie
The Law Office Of Paul
D’Ambrogio, Chester
Discharge
dilemma
» Once upon a time when
redeeming a mortgage, one prepared a form DS1, submitted this
to the mortgagees and requested
them to sign and return it. This
meant that you knew what was
happening.
We now send funds by CHAPS
with a follow-up letter, which is
the last we hear of matters until
we receive a complaint from the
buyer’s solicitors a few weeks
later stating that the Land Registry is reporting that no discharge
has been received.
Occasionally, mortgagees send
acknowledgements advising
us that they have transmitted a
discharge to the Registry, but this
seems to be regarded very much
as an optional extra on the part of
many mortgagees.
Is there anything that can be
done to sort matters out?
My memory extends back
to the problems with Julian S
Hodge & Co, some 40 years ago,
but we feel that we are drifting into the same position. In
particular on the purchasing
end, we are not able to honour our undertaking to the
mortgage lender to achieve the
registration of their mortgage
within the period specified in
their instructions, even though
the application nowadays is
frequently submitted perhaps a
week after completion (we allow
this period for the mortgage to
be discharged since it ought to be
quite enough).
Can anything be done to
persuade mortgage lenders to
transmit discharges promptly?
RM Napier
Albinson Napier & Co, Warrington
13/11/2014 12:48
COLUMNIST
17 November 2014
Secrets and spies
Joshua
Rozenberg
Safeguards
apply when
the security
services
intercept
information
protected
by privilege,
but are they
adequate?
11 Rozenberg.indd 11
OPINION 11
T
he spooks
must be feeling
pretty sore.
This month,
after a year’s
badgering, Britain’s security
and intelligence
services finally revealed the safeguards they apply when intercepting
lawyer-client communications. And
then the agencies were castigated for
not doing enough.
MI5, MI6 and GCHQ (pictured)
allowed tantalising glimpses of their
secret policies in response to legal
action by a former Libyan dissident.
Abdel-Hakim Belhaj, now a politician, accuses British intelligence
of complicity in his abduction and
rendition to Tripoli, where he says he
was tortured under Colonel Gaddafi’s
regime. Late last month, the Court of
Appeal refused to allow the agencies
to shelter behind the so-called ‘act
of state’ doctrine, something of a
setback for ministers unless the decision is overturned on appeal.
After revelations last year by
Edward Snowden, Belhaj’s London
solicitors became concerned that
emails and calls to their client in
Tripoli might be intercepted by the
very people they were suing. In the
hope of finding out whether the agencies were taking an unfair advantage,
Leigh Day started proceedings at a
special court called the Investigatory Powers Tribunal. To begin with,
the agencies insisted that providing any information about their
procedures would damage national
security. Then came the U-turn. They
released selected extracts from staff
instructions: some verbatim (though
retyped) and other passages summarised (or ‘gisted’, as it’s called).
Section 10 of the Police and Criminal Evidence Act 1984 says that items
subject to legal privilege include
‘communications between a professional legal adviser and his client’ –
though ‘items held with the intention
of furthering a criminal purpose’
are not covered. That definition of
legal professional privilege (LPP)
is used by MI5 as the starting point
for its guidance to in-house lawyers.
They are told: ‘Material subject to
LPP is among the most sensitive
sorts of information that may be
obtained by the Security Service.
The confidentiality of lawyer-client
communications is fiercely guarded
by the law and any departure from it
in the national security context must
be narrowly construed and strictly
justified.’
So far, so good. MI5 staff are told
that possible LPP material should be
sent straight to the service’s in-house
lawyers instead of to the ‘desk’.
Because those lawyers may find it
difficult to advise whether particular
material – ‘often a transcript of a
telephone call’ – is privileged, they
are told to ‘seek additional context
from the desk (and, where relevant,
the transcriber)’. If still unsure, they
should err on the side of caution,
‘given the
potentially
grave repercussions of
Analysts must
getting the
give ‘careful
decision
consideration
wrong (eg a
to necessity and
successful
proportionality’
abuse of
when targeting the
process
communications of
argument
lawyers
at a trial in
which the material is relevant)’.
Although privileged material
cannot be disclosed to prosecutors or
even referred to in court, ‘subject to
the normal requirements of necessity
and proportionality, LPP material
may be used just like any other item
of intelligence, eg to generate enquiries, mount a surveillance operation
or task an agent’. But in-house lawyers must ensure that any disclosure
outside MI5 is justified under the
Security Service Act 1989.
Guidance produced for the
intelligence service MI6 says that,
during the course of any interception
operation, material subject to legal
privilege must not be transcribed,
retained or copied unless it is necessary in the interests of national
security or one of the other purposes
authorised by the Regulation of
Investigatory Powers Act 2000. A
senior legal adviser will ensure that
LPP material is not distributed to
those dealing with an operation
unless there is an ‘overriding intelligence requirement’ or staff are at risk
from ‘extremists’.
Analysts working for the eavesdropping centre GCHQ are told
they are responsible for the legality
of their targeting ‘until a selector is
deactivated’. A selector, it seems, can
include a phone number or email
address; a soft selector may be a
word or phrase of interest. Because
of LPP, analysts must give ‘careful
consideration to necessity and proportionality’ when targeting the communications of lawyers. Before doing
so, analysts must have reasonable
grounds for believing that lawyers
are acting against the interests of
national security or the economic
well-being of the UK. A team at
GCHQ is responsible for ‘sensi-checking’ sensitive LPP material.
No doubt the agencies believe
these policies strike a fair balance
between maintaining national
security and ensuring that their
litigation teams are not given
an improper advantage. Allowing unmonitored conversations
between targets and their lawyers
could be too great a risk. But there
has already been one case where ‘the
potential for tainting was identified’. Belhaj’s lawyers want ‘proper
Chinese walls’ within the agencies
to ensure that ‘events’ data – the
fact that a meeting has taken place
or that a call has been made – does
not leak across. And the agencies
should establish robust systems so
that lawyers can give their clients
confidential advice.
joshua@rozenberg.net
13/11/2014 12:48
17 November 2014
IN-HOUSE
12 ROUNDTABLE
T
here are now more
in-house lawyers
than ever before,
with some teams
growing dramatically in size. But
what sits behind
this growth and
what challenges is
it bringing for those
running the teams?
The downturn forced in-house teams to look
very carefully at their organisations’ legal spend
and consider whether it is more cost-effective
to broaden their skills. However, growth in the
sector is not just about controlling costs, but also
increased commerciality and responding to the
changing regulatory environment.
It has also put in-house teams in the driving
seat when it comes to their partnerships with
private practice. Heads of legal are casting sceptical eyes over some of the big, headline-grabbing offerings, and the ambitions of some of the
bigger firms to do more work for fewer clients.
At the same time, there are new roles for
in-house lawyers, for instance within law firms.
There are also new functions – some local
Bruce
authority legal teams, for example, are
Macmillan
effectively operating as private practices,
generating income through shared
services and partnerships, while
investigating the options offered by
alternative business structures.
As in-house teams have grown bigger, so they demand a broader skillset, including non-lawyers,
as well as posing challenges in terms of career
planning and
managing the
expectations of
lawyers
12-15 Roundtablex.indd 12
At the
top table
While in-house teams are growing stronger,
uppermost in lawyers’ minds are ways to control
costs and broaden skill-sets. Grania LangdonDown reports from the Gazette’s latest roundtable
within the team. It is clear that, to reach the
top, in-house lawyers’ careers tend to be varied,
with our roundtable guests jokingly describing
their career paths as ‘promiscuous’.
So, how is the sector coping with the ‘new normal’ – the economy may be picking up, but that
does not herald a return to the ‘old days’ where
private practice could write their own cheques.
The latest Gazette roundtable, hosted by
DWF, brought together the heads of legal from
different sectors to debate how they see the
future. The focus was corporate counsel working
in a commercial environment, joined by Kent
County Council whose legal team had devised a
commercial response to cuts in its public funding.
Funke Abimbola, managing counsel for biotech giant Roche in the UK and Ireland, says the
downturn has had a ‘huge impact’ on in-house
teams, which have had to find more cost-effective ways of providing legal support.
She heads a five-strong team, four of whom
are lawyers, covering the full range of legal work
affecting Roche, from clinical trials through to
getting the product out into the market.
Abimbola was hired in 2012 into a newly
created role. ‘Incredibly, there’d been no one
heading up the function in quite this way before,’
she says. ‘Not only was it costing money to buy
in that expertise, but having it in-house means
you can get closer to your internal clients, build
relationships and demonstrate value. That was
a real push for us.’
Changes to in-house teams are ‘definitely cost
driven’, agrees Christopher Arnull, solicitor and
director at KPMG (distinct from KPMG Legal),
13/11/2014 11:43
1
4
e
-
e
’
y
t
d
17 November 2014
which provides audit, tax and other advisory and
consultancy services. He runs a department of lawyers and non-lawyers which deals with contracting
for those services.
‘Sending matters out to external lawyers is very
expensive with, inevitably, an inbuilt delay,’ he says.
‘So, if you’ve got your resource there on tap, it makes
everything much easier.’
Nick Economakis, general counsel of G4S Risk
Management, which deals with security in ‘hostile’
environments, sums up the change as: ‘God bless
the regulators. You used to do commercial contracts,
joint ventures, that kind of stuff. Since the financial
crisis, you have the Financial Conduct Authority,
the Bribery Act, you’ve got corporate manslaughter.
Companies want someone who understands their
business and can advise them proactively on the
risks – that’s been a great source of work.’
Bruce Macmillan was start-up general counsel with the Legal Services Board before joining
Visa Europe in 2012 as executive director, senior
commercial legal counsel. He is now working with
high-tech legal start-up Legal Practice Technologies, which has teamed up with the Law Society to
develop the new online conveyancing system Veyo,
expected to go live next year.
The growing volume of regulation has been key
for in-house lawyers, he agrees. ‘You often have a
multi-year lead time to change certain things in
the business, such as IT systems, finance systems,
pay and bonus policies, as a result of a law coming
through. You can tell how switched on law firms
are by the ones that are telling you nine months or
more before that something is coming in, so that
you have time to implement the change, rather than
three months after.’
Understanding and managing risk is a defining
characteristic of an in-house lawyer which, as our
attendees stress, goes far beyond legal risk to take
in commercial and reputational risk.
‘When you work for a company called Risk Management,’ Economakis reflects, ‘you don’t really have
any other option but to focus on it. It’s a given that
you understand legal risk, but you will be expected
to pick up on any operational or commercial risk
as well, and say, “Wait a minute, let’s just go back
and revisit that”.’
He adds: ‘There are very few times that the board
will ask you for black letter law advice. They will
be looking for you to use your judgement, and your
skills and training to add value to the business. We
all know that it’s quite difficult, as in-house lawyers,
to show value because you’re a cost centre. What has
changed from the dark ages when I started in-house
is that boards really get that value now.’
As in-house teams grow, there is a balance to be
found in externalising work, Deborah Grimason,
general counsel and company secretary of Travis
Perkins, says. She has 28 people in her team, who
look after legal services, as well as company secretary responsibilities, discipline, share-scheme
administration, insurance and pensions.
She has seen many ‘cycles’ since she trained
in-house in a legal department with 130 lawyers.
‘Businesses then got rid of their legal teams but they
are now building them up again, because in-house
lawyers understand the business’s needs and how
to create solutions,’ she says.
But there are financial challenges to consider.
Dealing with a project in-house, it may not be possible to capitalise the cost of the people working
on it unless a separate structure is set up, she says.
‘So, is it actually more tax- and financially efficient
if you put certain discrete projects out? There are
lots of things to balance.’
ROUNDTABLE 13
PHOTOS: NOAH DA COSTA
James Pigott, Nick Economakis and Bruce Macmillan
Hayley Leake and Christopher Arnull
For James Pigott, head of law, commercial and
environmental at Kent County Council, the advantages of getting bigger are the economies of scale,
which help the in-house team build capacity and
expertise, and ensure better use of premises with
potentially cheaper IT licences.
‘But, as a bigger function, there comes a time
when you need to look outside for clients to gather
in more work to feed the animal,’ he says.
Kent Legal Services already generates income
which helps subsidise its costs and is looking at the
opportunities offered by alternative business structures. ‘There are other councils who operate the
same model and many others are looking at it too,’
he says. ‘But they can’t all do it, otherwise they’ll
all be selling services and no one will be buying!’
He adds: ‘But the financial pressures on local
government are absolutely eye-watering. There is
a huge amount of work for us to do, but we have to
find other sources of income.’
When it comes to buying in external legal advice,
there have been some headline-grabbing deals, such
as Eversheds’ multi-million-pound annual retainer
with Tyco International, and its contract as the primary legal services provider for the International
Air Transport Association.
Continued on page 14
As a client you
really can call the
shots now. Many
firms are terrified
of losing longstanding clients
and will do
lots of extra
things, such
as writing
off time and
offering
training
— Funke
Abimbola,
Roche
13/11/2014 11:44
14 ROUNDTABLE
17 November 2014
From far left
(clockwise):
Steve Gauke
Law Society
Deborah Grimason
Travis Perkins
Derek Ellery
DWF
James Pigott
Kent County Council
Nick Economakis
G4S Risk Management
Bruce Macmillan
Visa
Grania LangdonDown
Law Society Gazette
Hayley Leake
Burford
Christopher Arnull
KPMG
Eduardo Reyes
Law Society Gazette
Funke Abimbola
Roche
Continued from page 13
But, with so many pressures on in-house lawyers, Gazette features editor and former editor of
In-House Lawyer, Eduardo Reyes asks if there is
a ‘natural push back’ against the more elaborate
structures for handing out legal work to external
lawyers? ‘I think we’re all gradually getting a bit
more sophisticated in what we do because there
are more options available,’ Macmillan says. ‘But
the big-ticket solutions, the emblematic ones, only
work in very particular circumstances. You’ve got
to have a lot of client buy-in and team buy-in to do
it. Sometimes it’s possible, sometimes not.’
So how are in-house counsel choosing their external partners?
There is a lot more variety than five years ago,
Economakis says. He uses DWF, which does an
‘absolutely fantastic job’, he says: ‘But there might
be other matters where your board would expect
you to use a magic circle firm if it’s extremely
high-reputation or a deal of a particular size. Then
there’s the third way using the Axiom or Obelisk
model, which will be right for other kinds of deal.’
This has meant a lot more competition for traditional law firms, he says, a view shared by Abimbola.
‘What has become really noticeable as a result is
the tremendous value we can get out of external
advisers,’ she says. ‘As a client you really can call the
shots now. Many firms
are terrified of losing
Does the
client
or your
employer
realise how
important
your input
was? You have
to make it
clear to them
— James Pigott,
Kent County
Council
long-standing clients and will do lots and lots of
extra things, such as writing off time and offering
training.’
DWF partner Derek Ellery is the firm’s chief counsel and heads its in-house legal function. From the
private practice perspective, he says they have dozens of secondees out at any one time with clients. ‘I
certainly think it is good for us,’ he says, ‘because it
means you have someone in the organisation. But
it’s amazing how people do “go native” eventually,
so I suppose you’ve got to watch that you are not just
training people up to benefit another organisation.’
What has caught the eye of Hayley Leake, corporate counsel and chief compliance officer for
litigation funder Burford Capital, is the way firms
are prepared to do ‘more interesting and flexible
things around fees. We’re seeing more of that and
I think it could go further still’.
With budgets shrinking, Macmillan says firms
need to work out what their brand means to the
client, because it needs to be more than any one
partner. ‘If a law firm wants to have more of my
wallet they’ve got to go wider, not just deeper into
a particular specialism,’ he says.
‘Deeper is ultimately going to bottom out, as you
get all of my spend in that area, and then it shrinks
year on year as my overall budget is normally subject to cuts annually.’ So, he says, a relationship that
is based purely on one partner or supporting one
business department, such as marketing, ‘is getting
increasingly problematic’.
‘An awful lot of firms are still very focused on
that one partner who treats me on a transactional
rather a relationship basis. That partner views my
workload reactively and thinks of my spend as being
“lumpy” rather than proactively looking forward
at my business plan with me and thinking, “It says
they’re doing some investment in March or April.
That probably means they’ll need some M&A work,
so why don’t I talk to them in January or February
about it?’’.’
For Arnull, relationships are still key: ‘You’re
right in saying there can be an unhealthy focus,
from the law firm’s perspective, on one partner. But
relationships are what drive the ties between client
and law firm. That’s why a partner will leave and
go to another firm and the work will go with him
or her, because of the strength of the relationship.’
Grimason agrees: ‘The term I like to use is that the
external law firms are an “extension” of my in-house
team. I am really trying to bring them to the party
by saying you need to work together as a seamless
legal team, encouraging them to work across the
piece and with my team and with the business.’
‘That’s the pot of gold for the law firm,’ Arnull
notes.
So are law firms that say they want to get more
work from fewer clients on the right track?
‘I shy away from that, actually, if I’m honest,’
Abimbola says. ‘I don’t want to be overly reliant on
one provider.’
Macmillan says it is the ‘right aspiration for them
to have, and sometimes it becomes irresistible if
they’re offering something that really works – and
this is frequently about how they deliver their legal
advice – the process – and not just the technical
quality of the advice’.
He gives an example of a firm which came up with
an innovative process and it went from having no
work with them to, six months later, having all of
their spend in support of that business area across
Europe. Other business areas also wanted to use the
same structural model to receive their legal advice
because of the cost, consistency, presentational and
timing benefits it brought.
‘Did I feel happy about that? Yes,’ he says. ‘Did I
feel uncomfortable as well because I was getting
into bed with one firm? Yes. But the trade-off made
sense in this case. However there is a dynamic tension between what a law firm will do to make sure I
become that big, long-term client, and in becoming
something you feel uncomfortable about because
of the dependency on that firm that this creates.
You are exposed to [risks] personally if the firm’s
quality and consistency of delivery and/or price
starts to slip in future.’
‘You have to link in the competitive tension,’
agrees Grimason, ‘but at the same time the more
work you give a firm, the more value-add they’re
going to bring to you, such as free-of-charge secondees or free training.’
So, having developed your relationship with
external partners, how do you shine within your
organisation?
Much of what in-house lawyers do goes unseen,
Pigott says: ‘Lawyers can be heavily involved in
deals, but do the client or your employer realise how
important your input was? You have to make it clear
to them, so we do quarterly reports, bringing that
information out and putting it in financial, added
13/11/2014 11:44
4
y
e
l
e
m
f
f
e
I
g
I
g
.
’
e
h
w
17 November 2014
IN-HOUSE 15
Steve Gauke, Deborah Grimason and Derek Ellery
value or risk awareness terms.’
that conversation, you are being unfair on them
‘For a smaller team like mine,’ Abimbola notes, and on the organisation,’ he says.
‘it’s all about being visible. The way we demonstrate
Arnull remembers someone in the early days
value is to make sure that people see us at meetings, of his in-house career commenting that he had
giving presentations. We make sure our names are ‘lawyer’ written on his forehead. With hindsight,
constantly being mentioned.’
he realises the person was saying he should become
One key way of being visible is by giving training, a business adviser, with legal skills as a string to
says Leake, ‘not just to your lawyers but to other his bow, so people came to him because he was a
functions in the business, which helps build aware- useful person to know, not because he had ‘lawyer’
ness of the added value you bring’.
written on his door.
Having established the in-house team’s credenWith the growing emphasis on lawyers taking on
tials, the discussion turned to managing the career more business roles, is there push back from others
paths of lawyers in what is generally a much flatter in the organisation?
structure than private practice.
‘I think clients can be surprised that you want to
One of the consequences of the downturn, says get involved to that level,’ says Pigott. ‘Sometimes
Abimbola, is that in-house opportunities suddenly you have to sell yourself and show that you are going
looked far more appealing. ‘I moved in-house at the to bring something that they haven’t already got.
height of the recession because I perceived that it As long as you can do that then you’ll be welcomed
would be much more exciting and it has turned out in, but getting through the door can sometimes
to be exactly what I hoped for,’ she says. ‘Even now, be hard.’
the number of private practice lawyers wanting to
Abimbola was asked to step into a commercial
move in-house far exceeds the opportunities, which role a year ago. She admits being very concerned
means you can recruit top talent into
because she felt there were othyour team.’
ers better placed to do it.
We all know
In one of his roles, Macmillan says
‘But the then finance directhat it’s quite
that the organisation consciously
tor felt very strongly that I was
difficult, as
adopted a career path with a ‘Y’ fork in-house lawyers, to
the right person,’ she recalls.
in it. Those wanting to specialise in show value because
‘It was a real stretch but it has
a subject matter area could go down you’re a cost centre.
been a wonderful opportunity
one arm of the ‘Y’ in terms of job What has changed
and I’ve developed into
roles, career progression and grow- from the dark
the role. Was there
ing their expertise, though ultimately ages when I
resistance? Absothey would have to move job types or started inlutely, from those
companies to gain promotion.
who felt it should
house is that
Those wanting to develop a more boards really
have been them,
business partnering and people man- get that
though I would
agement profile could go down the value now
add the caveat
other arm of the ‘Y’ and be rotated — Nick
that this was the
through different areas of the busi- Economakis,
first time such
ness, rounding out their skills so that G4S Risk
a role had been
they could end up as head of a depart- Management
given to a lawyer.’
ment or head of legal, either in their
The key, says Ellery,
own team or elsewhere.
is to set out ground
Both are legitimate career paths,
rules. ‘I was
he says. But it is very important to dism a n cuss with new recruits from the outaging
set and repeatedly during their time
partwith you the idea that they are on a
ner in
‘career voyage’ due to the limited size
m y
of in-house teams. ‘If you don’t have
pre-
vious firm, so I tend to take a robust and hands-on
approach,’ he says. ‘But the danger is making sure
I’m not both advising and making the decisions.
Getting too close to the business decision [can
impair] your ability to give advice in a dispassionate way.’
Abimbola agrees: ‘I insisted the overall project
lead was still ultimately accountable for all the
stakeholder management and decision-making,
and liaising with NHS England, and that there was
no way that I was going to be expected to do that.’
Steve Gauke, relationship manager with the Law
Society responsible for building links with general
counsel, says some companies are asking whether
they need a lawyer to fill the head of legal position
because the skills required centre around people
management and the career development of teams,
rather than legal advice.
‘You are looking for a different skill-set,’ Macmillan agrees. ‘You are looking for people managers and team players who can collaborate, rather
than lone wolves. I’m also increasingly looking for
non-lawyers within my team – someone with IT
competence, for example, to help build the internal
share point and make it work properly. People with
good financial and budgeting or training skills, so
that I don’t have to use one of my expensive lawyers
to do something that is not the best use of their
skills and time.’
To round up the debate, Reyes asks the attendees how their budgets are looking. The general
view is positive. While core budgets for some are
shrinking year on year, the overall legal spend they
control may go up where the cost is tied into work
for a particular department and becomes part of
its cost of sale.
What is clear from the debate is that the profile of
the in-house community is rising. Any notion that
in-house lawyers are ‘second-cousins’ is well and
truly a thing of the past.
Grania Langdon-Down is a freelance journalist
l The GC 350 Engagement Programme will be
launched at the Law Society, 113 Chancery Lane,
London WC2A 1PL, on 4 December from 5-7.30pm.
Royal Dutch Shell legal director Donny Ching and
former MP David Howarth, author of Law as Engineering, will be speaking at the seminar. For more
details, go to: tinyurl.com/k8fkm5x.
13/11/2014 11:44
HOW TO
16 FEATURE
Be a senior partner
An effective and
respected senior
partner is a
leader not a
dictator, hears
Monidipa
Fouzder
S
enior partners can be
mysterious
figures.
Plenty can
be found and
read about
who has been
elected senior partner of a firm:
the latest news is that corporate partner James Palmer has
taken the role at Herbert Smith
Freehills, succeeding Jonathan
Scott. But what exactly do senior
partners do? How do they spend
their days?
Chosen one
In many cases, the senior partner
is elected by the firm’s partners
to serve a three-year term and is
usually re-elected until they
either step down from
the role or someone
else throws their hat
into the ring.
‘When I was
elected senior partner [in 1997], in the
hierarchy of partnership I was 11th,’ recalls
Burnetts’ John Morris.
‘So 10 men and women
were more experienced
than me in terms of
admission
and
they
16-17 Howto.indd 16
17 November 2014
had been at Burnetts longer than
me. [But] they had faith in my
leadership skills and felt I was
the right person for the job.’
With smaller firms the process
is often simpler. ‘There were two
of us, we had no staff – I agreed
to do it,’ says David Pickup, of
Aylesbury-based Pickup & Scott.
Whatever size the firm, Kingsley Napley’s Jane Keir advises
lawyers to seize opportunities
when they arise – as she did
when, as a junior partner, she
was given the opportunity to
become head of the family team.
In her 14 years as department
head, Keir learned about finance,
business development and marketing. It was then suggested,
in 2004, that she become one of
My job is
to look
at where
we’re going
to be in five
years’ time,
not what
we’re going
to be doing
tomorrow
John Morris,
Burnetts
three managing partners. She
was appointed senior partner
18 months ago: ‘For me it didn’t
come in the order I was expecting,
because I had taken the traditional view of senior partners.
That view is that you do it at the
end of your career, when you’ve
got all the years of experience;
you’ve got a fantastic client
following; you’ve seen a lot of
things happening.
‘I really relied on the judgement of my outgoing senior
partner, who said “I think you
can do it”.’
She adds: ‘You do need to talk
to people and have the courage
to step out. If you get an opportunity, even if you have to stretch
yourself a bit, take it.’
Face of the firm
Becoming senior partner means
becoming the ‘ambassador’ for
the firm. Externally, the senior
partner may deal with the firm’s
most important clients, and
attend meetings, ceremonies and
services. Internally, they may
be chairing partners’ meetings
and remuneration committees, and sitting on the firm’s
oversight board among other
roles, depending on the firm’s
governance structure.
‘Law firms have developed
like equivalent plcs,’ says Mills
13/11/2014 15:48
4
17 November 2014
senior partner in 2002. ‘I have a
& Reeve’s Mark Jeffries, who was
responsibility to pay attention to the
elected senior partner in 2007. The
way in which the firm is developing
senior partner, he says, is like the
– importantly, to make sure I offer
executive chairman, with the manadvice to the managing partner and
aging partner equivalent to a CEO.
be ready to support him in his role.’
‘It’s really important to be seen to
Support from the firm is imporbe visible, and that’s as much intertant. ‘We’ve got a really good
nally as externally,’ Keir believes.
management team that do a lot of
‘People want to see you, what you’re
everything, from finance to HR to
doing – they want to know where
business development,’ says Keir.
the firm is going. They want leader‘I’m not caught up in the day-toship, not dictatorship.
day management, which gives me
‘A lot of it is about communicaa bit of blue sky to think, “What are
tion,’ says Jeffries. ‘Making sure the
our needs as a firm? How should we
partners understand what the firm’s
be out there pursuing them?”.’
management is trying to do.’
Keir helped to write Kingsley
Keir holds a senior partner
Napley’s business plan for the next
surgery every three to four months,
three years. ‘That’s quite a big exerwhere she sets aside a couple of
cise,’ she says. ‘We’re looking to the
hours for anyone in the firm to
future and trying to gauge where
come and see her. ‘It’s in confidence,
the work’s going to come from, what
and they can raise anything, from
we’re going to do and what we’re
advice on research to theses they’re
going to do to support it.
writing. Maybe it’s an MBA they’re
‘And then you’re trying to work
doing externally. Or it might be a
out where the threats are going to
number of people who want to form
come from. And you’re involving
a group and a budget to do that.
people at every single level because
Others will come and talk about
it’s their future as well.’
ways in which we can improve
services.’
She adds: ‘If people can talk to
Learning curve
you on a one-to-one level and be
A good senior partner will pay close
encouraged to do that, you can get a
attention to the internal developlot of good ideas.’
ment of the firm as well as external
Cripps’ Michael Stevens, in his
growth.
ninth year as senior partner, holds
‘Firms that have a good appraisal
a regular coffee or lunch with a
process will start to ask you what
‘small group of completely different
your ambitions are, how you see
people around the firm, and they set
yourself developing,’ Keir says.
the agenda for points they want to
‘The senior partner should
talk about’.
encourage people at any level to
He also promotes a monthly
develop skills beyond technical
award for staff ‘who have gone the
ability in the law,’ Bourns advises.
extra mile’ serving
‘Law firms have been
clients.
incredibly resilient
You need to
‘As you get more into
over time. We have
talk to people
the role, you find cerdemonstrated
and have the
tain things work better courage to step
capacity to be reathan others,’ he says.
sonably innovative
out. If you get an
opportunity, even if to respond to client
demand. Within
Leading the firm
you have to stretch
Being the senior partyourself a bit, take it that we need to
encourage people
ner means looking to
Jane Keir, Kingsley
at all levels to
the future, and thinkNapley
develop other
ing about long-term
relevant skills.’
strategy and growth.
TLT has a range of train‘My job is to look at
ing courses to help build
where we’re going to be
future leaders. ‘Through
in five years’ time, not
our appraisal process,
what we’re going to be
we’re trying to encourage
doing tomorrow,’ says
people to think about those
Morris.
broader skills required in
Senior partners must
order to become effective
also recognise ‘that you
managers, managing parthave responsibility for
ners, senior partners
keeping an eye
or CEOs in legal
within the firm
services business in
for any indicathe future,’ Bourns
tors that things
adds.
are not developing as one
hoped’, says
Carry on
TLT’s Robert
working
Bourns, who
Despite the
was elected
demands of being
16-17 Howto.indd 17
HOW TO 17
GETTING YOUR HANDS DIRTY
Senior partners are faced with many challenges, but few so daunting as trying to
get rid of a rat, as David Pickup, of Aylesbury-based Pickup & Scott, discovered.
‘We’ve got a small yard at the back of
our building and there was a rat in the
yard,’ he recalls.
‘Staff did not like the idea of a rat running
around. So I had to put some rat poison out.
A few days later I found the dead rat and had
to remove it.’
He adds: ‘As senior partner you have to be prepared to do
anything.’
a senior partner, many still carry on
with their fee-earning work.
‘I think it’s important for the
senior partner to be seen as someone who has a good practice…
so you don’t lose touch with the
stresses and the pressures of being
a solicitor in favour of a 100%
management role,’ Keir says. ‘I’m
not saying you would lose it very
easily, but it’s important to be able
to identify with the people who are
on the frontline going to court day
after day, week after week.’
‘I have been very fortunate that
the partners recognise and make
allowances in fee-earning work,’
Bourns, whose work is split 50/50
between being a senior partner and
fee-earning, adds. ‘It’s a great role
and I have been extremely lucky.’
Being chosen to represent the
firm is a huge honour. But if senior
partners lack genuine interest in
what the firm is doing, they will
struggle.
There is no room for selfishness,
Bourns warns: ‘If people start
doing the job for themselves or to
promote themselves, that is not
good for the firm and they should
step aside.’
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13/11/2014 15:48
18 IN PRACTICE
17 November 2014
LEGAL UPDATE: CIVIL PROCEDURE
Conduct and costs
Masood Ahmed
University of Leicester
ADR and offers to settle
» When the court comes to consider
costs and to exercise its discretion
under Civil Procedure Rule 44.2, it
has regard to all the circumstances,
including the conduct of the parties
before as well as during the proceedings (CPR 44.2 (4) and (5)). That
includes conduct by which a party
refuses to agree to alternative dispute
resolution (see White Book, part 1, at
paragraph 44x.3.21, Halsey v Milton
Keynes General NHS Trust [2004]
EWCA Civ 576 and PGF II SA v OMFS
Company 1 Ltd [2013] EWCA Civ
1288). The significance of the role of
alternative dispute resolution and the
obligation on the parties to consider
ADR before and during the litigation
process is further reinforced by the
Jackson ADR Handbook (Oxford University Press (2013)).
One of the factors which the court
will have regard to when exercising its
powers as to costs is ‘any admissible
offer to settle made by a party which
is drawn to the court’s attention, and
which is not an offer to which costs
consequences under part 36 apply’
(CPR 44.2(4)(c)). This was a determining factor in the recent case of
Northrop Grumman Mission Systems
Europe Limited v BAE Systems (Al
Diriyah C41) Ltd [2014] EWHC 3148
(TCC).
Northrop concerned Part 8 proceedings in which Ramsey J, sitting in the
Technology and Construction Court,
gave judgment upholding BAE’s contention that on a true construction of
a licence agreement, BAE was entitled
to terminate that agreement for convenience. In relation to costs, NGM
accepted the principle that BAE was
entitled to its costs to be assessed on
a standard basis if not agreed, but
contended that those costs should be
reduced by 50% by reason of BAE’s
unreasonable refusal to mediate the
dispute. BAE had previously, through
the exchange of ‘without prejudice
save as to costs’ correspondence,
offered to settle on the basis of no
payment, with each party bearing
their own costs. This was, Ramsey J
noted, an offer which, if it had been
accepted by NGM, would have put
NGM in a better position than it now
found itself in terms of the outcome
of the hearing. This offer was rejected
by NGM which referred to its offers of
mediation.
In support of its contentions, NGM
submitted, inter alia, that the dispute
was suitable for mediation as the
essence of the dispute was about the
payment of licence fees and support
costs, and the fact that the dispute
involved matters of construction did
not make it unsuitable for mediation.
Reference was made to paragraph 17
of Halsey where the court mentioned
the Commercial Court working party
on ADR, which stated in 1999 that
some parts of Commercial Court work
did not lend themselves to ADR. It
said that the most obvious kind was
where the parties wished the court to
determine issues of law or construction which may be essential to the
future trading relations of the parties, an ongoing long-term contract
or were of general importance in a
particular trade or market.
NGM contended that this was not a
case where the issues of construction
were essential to future trading relationships or important in any wider
context. In any event, NGM argued,
matters had moved on. The emphasis on, and the perceived benefits of,
ADR had strengthened over the years
(see, in particular, PGF II at [24] to
[30]) and there was no objective reason why construction issues should
not be amenable to mediation so
that a skilled mediator could ‘hold
up a mirror’ to the parties’ respective
arguments, and identify the risks and
merits involved as in any other case.
In relation to the merits of the case,
NGM submitted that it is the reasonableness of a party’s belief that it has
a strong case which is of importance.
In Halsey at [19] Dyson LJ, as he then
was, drew a distinction between
cases that would have succeeded on
an application or summary judgment
and more borderline cases. NGM submitted that this was a case where the
merits weighed in favour of ADR.
Finally, NGM argued that the cost of
litigation in the matter outweighed
any costs which would have been
incurred in engaging in mediation.
BAE argued that it is a sophisticated commercial client with in-house
counsel who considered mediation
and its likelihood of achieving settlement, saving time, costs and obviating
risks and the possibility that a skilled
mediator could achieve a solution. In
relation to the Halsey factors, BAE
contended that NGM’s case involved a
relatively short point of contract interpretation on which a claim totalling
more than £3m depended. Therefore
this was not a long-running dispute
and not a dispute which cried out
for mediation, but one where a party
could legitimately consider whether
mediation was worthwhile and reasonably conclude that in all the circumstances it was not.
In relation to the merits of the case,
BAE submitted that it reasonably concluded that this was not a borderline
case. BAE and its external lawyers
considered that BAE was correct as a
matter of law and also had commercial merits of not paying for licences it
did not require. In relation to the costs
of mediation, BAE submitted that the
costs were not small in comparison
with the costs of the trial which could
have taken half a day and, even with
NGM’s witness statements, each party
only estimated the trial to take one
day. In relation to whether ADR had
a reasonable prospect of success, BAE
submitted it was a dispute between
two commercial enterprises which
would take up relatively little court
time which both parties could afford
to fight. There was an issue of contractual interpretation on which the
claim depended and the parties could,
and would, never agree the meaning
and effect of the clause at the heart of
the dispute.
Ramsey J held the following:
1. Nature of the dispute. Ramsey J
regarded this case as being like many
cases where points of construction
are major issues at the centre of a
financial claim. In all such claims a
skilled mediator can assist the parties
in resolving the dispute by finding a
solution to disputes which each party
Halsbury’s Law Exchange
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18-19 update-SDT.indd 18
would regard as incapable of being
settled and would be unable to settle
without such assistance.
2. Merits of the case. This was a
case where BAE reasonably considered that it had a strong case. Both in
Halsey at [18] and in Daniels v Commissioner of Police for the Metropolis
[2005] EWCA Civ 1312, the Court of
Appeal indicated that where a party
faces an unfounded claim and wishes
to contest that claim rather than make
a payment to buy it off, the court
should be slow to characterise that
conduct as unreasonable. However,
the authors of the Jackson ADR Handbook properly, in Ramsey J’s opinion,
draw attention at paragraph 11.13 to
the fact that this seems to ignore the
positive effect that mediation can
have in resolving disputes, even if the
claims have no merit. A mediator can
bring a new independent perspective
to the parties if using evaluative techniques and not every mediation ends
in payment to a claimant. Nevertheless, on the merits of the case, Ramsey
J considered that BAE’s reasonable
view that it had a strong case is a factor which provides some but limited
justification for not mediating.
3. Extent to which other settlement
methods were attempted. Ramsey J
noted that this was not a case where
there was an offer to mediate and no
response; or where the parties did
not have some communication with
a view to settlement. Rather, the
manner in which parties engaged
in correspondence (NGM proposing mediation and BAE requesting
information) meant that neither party
persuaded the other party of its views.
Again it was a classic situation where
a mediator could have cut through
the positions taken by the parties. On
this basis, there was some attempt to
settle the dispute by other means in
terms of a face-to-face meeting and
a ‘without prejudice save as to costs’
offer. Overall this factor was neutral,
or marginally in BAE’s favour, in its
impact in assessing the refusal to
mediate.
4. Costs of ADR. The costs of ADR
could not be said to be disproportionately high. ADR would, at the very
least, have saved some of the costs of
the correspondence between the parties by avoiding the positions taken.
5. Prejudicial delay caused by ADR.
An independent and politically neutral
legal think tank which contributes to the
development of law and the legal sector
13/11/2014 10:19
4
17 November 2014
g
This was not a factor in this case.
Mediation could have taken place
without affecting the litigation.
6. Prospects of successful ADR. This
was a classic case in which a mediator could have brought the parties
together. In assessing the prospects
of success, Ramsey J did not consider
that the court could merely look at the
position taken by the parties. It was
clear that if BAE did not want to pay
anything and if NGM would not settle
without payment then there would
not be a settlement. However, this is
the position in many successful mediations. Ramsey J explained that this
position allows a mediator to bring
the necessary skills of evaluation and
facilitation to find solutions which
have not been considered. The published success rate of mediation (see
paragraph 13.03 of the Jackson ADR
a
n
s
y
e
t
t
,
-
o
e
e
t
o
d
h
g
h
n
n
R
-
.
Handbook) shows that mediation is
generally likely to be successful.
This was, Ramsey J argued, a case
which was appropriate for mediation
and where mediation had reasonable
prospects of success. Was it unreasonable for BAE, which considered it had
a strong case, to reject NGM’s offer to
mediate? Ramsey J concluded that
it was: ‘Where a party to a dispute,
which there are reasonable prospects
of successfully resolving by mediation, rejects mediation on grounds
which are not strong enough to justify
not mediating, then that conduct will
generally be unreasonable. I consider
that to be the position here.’
However, BAE’s ‘without prejudice
save as to costs’ letter was a relevant
factor to be taken into account and
this was an offer which NGM was not
successful in bettering. NGM’s con-
duct in not accepting that offer was
similarly a matter to be taken into
account. Ramsey J reasoned thus:
‘The issue is how those two aspects
of conduct should be taken into
account where BAE has been, overall, the successful party. A refusal to
mediate means that the parties have
lost the opportunity of resolving the
case without there being a hearing. A
failure to accept the offer has equally
meant that the parties have lost the
opportunity of resolving the case
without a hearing. While mediation
at an earlier stage might have avoided
costs, if BAE had mediated even at a
later stage, its conduct would not have
been unreasonable.’
Ramsey J concluded that the fair
and just outcome should be that neither party’s conduct should be taken
into account in order to modify what
IN PRACTICE 19
would otherwise be the general rule
on costs (that is, the loser pays the
winner’s costs).
Although the case is an illustration of the pro-ADR stance which
the courts are continuing to follow,
especially after the Jackson reforms
and PGF, it also demonstrates how
the courts will consider the relevant
facts of each case when determining whether a refusal to mediate is
unreasonable for the purposes of
CPR 44. The case also highlights
the significance of CPR 44.2(4)(c).
It follows from Northrop that where
a successful party in litigation can
demonstrate that it has made a without prejudice offer to settle, then that
may suffice for the purposes of showing the court that is has not acted
unreasonably in rejecting an offer to
engage in ADR.
SOLICITORS DISCIPLINARY TRIBUNAL AND SRA
Decisions and interventions
Decisions filed recently with
the Law Society (which may
be subject to appeal) include:
Rukhsana Jabeen Kiani
11204-2013
•• Application
Admitted 1985
8, 9 September 2014
•• Hearing
Reasons 15 October 2014
The SDT ordered that the respondent
should be struck off the roll.
In breach of rule 7 of the Solicitors
Accounts Rules 1998, the respondent had failed to remedy breaches
thereof promptly on discovery. In
breach of rule 22(1)(e) of the rules, client money had been withdrawn from
client account when instructions to
do so had neither been given nor confirmed in writing; and in breach of
rule 22(5) of the rules, the respondent
had withdrawn money in relation to a
particular client which exceeded the
money held on behalf of that client,
thereby creating a shortage on client
account.
In breach of rule 32 of the rules,
she had failed to keep accounting
records properly written up at all
times to show her dealings with client money received; held or paid; she
had failed to record all dealings with
client money in a client ledger; and
the current balance on each client led-
18-19 update-SDT.indd 19
ger was not always shown or readily
ascertainable.
The respondent had failed to act
with integrity, contrary to rule 1.02
of the Solicitors Code of Conduct
2007. She had failed to have sufficient regard for her duties under
the Money Laundering Regulations
2007 and/or the Law Society’s blue
card warning on money-laundering and had thereby breached rule
1.06 of the code. She had permitted
money to pass into and out of client
account when not accompanied by
the conduct of a legitimate underlying legal transaction, and had thereby
breached all or any of rules 1.02, 1.03
and 1.06 of the code and/or note (ix)
to rule 15 of the rules.
The SDT had taken careful note of
the medical evidence produced by
the respondent. It had heard of the
respondent’s difficulties but also that
she was fit to practise. The SDT had
also considered the range of good references provided for the respondent.
While there was no allegation before
the SDT of dishonesty, it regarded
those allegations which had been
proved as being extremely serious.
The appropriate and proportionate
penalty in the present case was strikeoff. The medical evidence adduced did
not mitigate that sanction sufficiently
to allow the respondent to continue in
practice. The respondent was ordered
to pay costs of £43,970.
Lillywhite Williams LLP
On 28 October 2014, the Panel of Adjudicators Sub-Committee resolved to
intervene into the practice of Ian
James Lillywhite, Andrew Roy Williams, Naresh Kumar Chopra and
Rehana Kausar Saeed, formerly at
Lillywhite Williams LLP, Elliot House,
1 Cinema Parade, Green Lane, Dagenham, Essex RM8 1AA.
The grounds for intervention
were: there was reason to suspect
dishonesty on the part of Chopra and
Saeed; Lillywhite, Williams, Chopra
and Saeed had failed to comply with
rules made by the SRA; and to protect the interests of clients (or former
or potential clients) of Lillywhite,
Williams, Chopra and Saeed, or the
beneficiaries of any trust of which Lillywhite, Williams, Chopra and Saeed
are or were trustees.
In relation to the recognised body,
Lillywhite Williams LLP, the grounds
for intervention were: a recognised
body or manager of such a body had
failed to comply with rules made by
the SRA; there was a reason to suspect
dishonesty on the part of a manager or
employee of the recognised body; and
it was necessary to exercise powers of
intervention to protect the interests
of clients.
Nigel Coates of Russell Cooke LLP,
2 Putney Hill, London SW15 6AB, tel:
0208 789 9111, has been appointed to
act as the SRA’s agent and he took possession of all Lillywhite Williams LLP
practice papers on 29 October.
Lillywhite, Williams, Chopra and
Saeed’s practising certificates were
suspended with immediate effect.
J R Slade
On 24 October 2014, the Panel of Adjudicators Sub-Committee resolved to
intervene into the practice of John
Randall Slade and into J R Slade,
formerly at 10 Howe Green Road,
Purleigh, Chelmsford, Essex CM3 6QA.
The grounds for intervention were
that the committee was satisfied that:
there was reason to suspect dishonesty on the part of Slade in connection
with his practice; and there had been
a failure to comply with rules made
by virtue of sections 31 or 32 of the
Solicitors Act 1974 (as amended).
James Dunn of Devonshires, 30
Finsbury Circus, London EC2M 7DT,
tel: 020 7065 1830, has been appointed
as the SRA’s agent. He took possession of JR Slade’s practice papers on
28 October.
Slade’s practising certificate has
been suspended with immediate
effect.
13/11/2014 10:19
20 IN PRACTICE
17 November 2014
PRACTICE POINTS
Third-party funding
Has Excalibur put third-party
funding to the sword? asks
Robert Kay
» Excalibur was the legendary sword
of King Arthur, sometimes attributed
with magical powers or associated
with the rightful sovereignty of Great
Britain. Excalibur was also the first
name of a Delaware corporation that
began an action in 2010 against Texas
Keystone and others claiming it was
entitled to an interest, said to be valued at about $1.6bn, in a number of
oil fields in Kurdistan. The action was
financed by various private investors
and investment funds. Although it
was not funded by ‘traditional’ thirdparty funders (TPFs), it is likely to
have been one of the largest thirdparty funding deals ever arranged.
The claim was described by a lawyer at Clifford Chance to one of the
funders as ‘the best claim he had ever
seen’. That might have been true to the
claimant’s lawyer. Yet, on 13 December
last year, following a 57-day trial, Lord
Justice Clarke did not agree.
An oil and gas exploration site in Kurdistan
The judge was scathing. He found
the claims to be ‘an elaborate and artificial construct… replete with defects,
illogicalities and inherent improbabilities’ resulting in the case being ‘essentially speculative and opportunistic’.
While the claims were advanced ‘at
great length and by the assertion of
a plethora of causes of action’, they
were found to be ‘based on no sound
foundation in fact or law’ and so they
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‘met with a resounding, indeed catastrophic defeat’.
As the claimant’s case was funded
by a number of funders, the judge
ordered an interim payment on
account of costs in the sum of £18m
(that Excalibur had previously paid
into court as security for costs)
and also ordered additional security which, if the claimant failed to
provide, the defendants could seek
through a non-party costs order
against the funders.
The extra security was not provided
and the defendants were given leave
to join the funders of the action to the
proceedings. This occurred and last
month Clarke LJ provided his ruling
on the extent of the funders’ liability
for adverse costs.
The present
The ruling is interesting for several
reasons.
(1) The judge decided that funders
should bear the costs subject to the
Arkin cap (the decision in Arkin v
Borchard Lines [2005] where the
Court of Appeal concluded that a
TPF could be liable for adverse costs
and, unless the agreement was champertous, the liability (for a non-party
costs order) should be capped at a sum
equivalent to the amount invested in
the case.
(2) In a new twist, when considering
liability for adverse costs, the cap on
a TPF’s overall liability includes the
entirety of that funder’s exposure –
be it for the claimant’s or defendant’s
costs. Essentially, therefore, if a TPF
has provided security for costs, their
liability will be double the total of the
amounts they have funded.
(3) Notwithstanding that TPFs
cannot exercise control, a TPF can be
held financially responsible for the
conduct of the lawyers and experts
in the event that indemnity costs are
awarded. Put simply, a TPF follows
the fortunes of their counter-party:
20 PP.indd 20
LSD 1/4.indd 1
they share in the upside returns and
so they should also share in the downside (subject to (1) and (2) above).
A protective measure for a TPF
might be to include an indemnity
from the lawyers/experts for any
indemnity costs caused by their conduct. While this might not be popular
(and will depend on TPF market conditions), it might be a useful safeguard
if the review and funding occurs at an
early stage.
(4) A TPF will only be liable from
the point that they became involved
in the matter. As a result, a TPF can
support a case in its later stages without being found responsible for retrospective costs.
(5) If a case does go wrong for a TPF
it seems that any parent companies
of the TPF may not be immune to an
adverse cost liability. The court is prepared to look at the ‘economic reality’
to get at the ‘ultimate beneficiaries of
success’.
The future
Contrary to what some have said, I do
not agree that the Excalibur rulings
create a problem for the future of TPFs
(described by Lord Neuberger as ‘the
life-blood of the justice system’).
It is right that the case provides
a salutary lesson about the risks
involved (‘adopting a claim while
unable to assess the merits sufficiently risks exposure to indemnity
costs when the case turns out to be as
bad as this one’) and illuminates the
worst-case scenario, but it is unlikely
to cause established TPFs to alter their
conduct.
It is, perhaps, noteworthy that none
of the ‘traditional’ TPFs funded the
Excalibur case. I believe that this corroborates the essential facts that for a
TPF, as ever: (a) due diligence in the
early stages of analysing the case; and
(b) understanding the conduct and
proposed methodology of the lawyers
remain key.
In conclusion, TPFs should remain
vigilant to assess the risks and be
ever prudent against claims which
seem ‘legendary’ and/or where there
needs to be reliance on the Arthurian ‘magical powers’ of a lawyer to
ensure the case is a success. Whatever
the promised rewards, any funders
should avoid the challenge of drawing a sword from a stone.
The full decision of Excalibur Ventures LLC v Texas Keystone Inc and
Ors (Rev 2) [2014] EWHC 3436 Comm
can be found at tinyurl.com/ogyhw9n.
Robert Kay is a solicitor-advocate at
Cozen O’Connor
13/11/2014 11:42
13/11/2014 11:40
MY LEGAL LIFE
Military mettle
Richard
Hosley
IN THE NEWS
Partner,
Hogan
Lovells
21 In Person.indd 21
IN PERSON 21
17 November 2014
Law is a second career. I initially pursued a career in film and
television. I had a good job with a
production company on a network
show but the work was unfulfilling. I
wanted to do something that would
have a positive impact on society.
I left my job, returned home and
applied to law schools.
I obtained my law degree from the
University of Colorado. I received
legal training from the military at
the Naval Justice School in Rhode
Island, and the army’s Judge Advocate General’s Legal Center and
School at the University of Virginia.
I also had training with the Department of Justice and its National
Advocacy Center. The formal legal
training established a strong foundation but I learned more on the
job and in the trenches as a marine
officer, trial attorney and prosecutor
than I ever did in a classroom.
Before I ever picked up a legal
file, I picked up an M16 rifle. The
Marine Corps has a saying: every
marine is a rifleman. This means
you are not just a lawyer or a pilot
or a cook. You are first and foremost a marine. All marine officers
are required to undergo months of
infantry training before they move
to their occupational specialty. My
military training gave me skills and
traits that have served me well as a
trial attorney. The marines taught
me self-discipline. They taught me
to be decisive. They taught me to
overcome fear. They taught me to
remain confident and calm at all
times no matter the odds.
I also learned hard lessons by
practising in military, state and
federal courtrooms. To be a good
trial lawyer you have to get ‘reps’.
You have to try real cases in real
courts. Trying a case teaches realworld lessons you will never learn
from a textbook.
The most difficult and rewarding
period of my career was deployment to Iraq as the legal adviser to
an infantry battalion. We deployed
to the Al Anbar Province on the
Syrian border. It came at one of the
most critical times of the war. The
constitutional referendum was in
October 2005. The elections were in
December 2005. The country was at
a crucial tipping point and violence
was everywhere. My job was to
provide legal advice and guidance to
the commanding officer on a range
of legal issues, including the law of
war, rules of engagement, fiscal law,
detainee operations and criminal
law. The marines had to make life
and death decisions every day. My
job was to guide them through the
legal minefield.
One of the highlights of my career
was acting as a poll observer
during Iraq’s constitutional referendum. Tribal leaders told us that
anyone who voted would be killed
by extremists. Despite the threat,
people came to
BEFORE I EVER the polls and cast
their ballots. It was
PICKED UP A
LEGAL FILE, I
inspiring to watch
PICKED UP AN
those brave Iraqis
M16 RIFLE
risk their lives to
participate in the
democratic process.
Few litigators have any real
trial experience – 97% of federal
criminal cases settle. The number
is probably higher in civil litigation.
Trials can be frightening. There
is a lot of risk. That is why it is so
important to have a seasoned trial
attorney on your team. When your
life and livelihood are on the line,
you want a highly capable, confident, battle-hardened trial attorney
on your side.
Independence day for Warburg Institute
Lawyer in the news
Leticia Jennings
Bates Wells Braithwaite
By Jonathan Rayner
Who? Leticia Jennings, 32,
senior associate, dispute resolution, at City firm Bates Wells
Braithwaite.
Why is she in the news? She
helped preserve the independence of the Warburg Institute,
a London-based teaching and
research centre specialising in
cultural history, art history and
the history of ideas.
Jennings acted for the
institute’s advisory council in
its defence of the University of
London’s claim disputing its obligations as trustee to house, fund
and maintain the institute.
Mrs Justice Proudman, sitting
in the High Court, held that the
university is obliged to provide
funding for the activities of the
institute and is not entitled
to charge a proportion
of the university’s total
estate expenditure to
it – which, the judge said,
‘would fly in the face’ of
the terms of the trust.
The university’s
vice-chancellor, Professor Sir Adrian
Smith,
said: ‘I am
delighted that we now have clarification on the main issues raised
before the court. The university
has always maintained its desire
to preserve the vision of Aby Warburg [who began the collection
that became the institute].’
Thoughts on the case: ‘I
am pleased this judgment
clarified the university’s
obligations and, importantly, made clear that the
university is not entitled to
use the name and prestige
associated with the institute
to obtain funds, and then
spend those funds
to the university’s
general benefit. I
hope the university will now concentrate on its duties as trustee
so that the institute thrives.’
Why become a lawyer? ‘I had
always meant to become an
English teacher, but my housemate at university suggested I
apply to law school instead. I’ve
never looked back.’
Career high: ‘Other than this,
acting for the claimant in an acrimonious contested probate case,
in which we secured an order
for our client’s full entitlement
under his late mother’s will.’
Career low: ‘Standing ankle
deep in debris on a site visit to a
client’s recycling plant. It took
me days to recover.’
13/11/2014 10:19
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Florit_Brooke_Communisis_FP_TLS_Gazette_AW_artwork 12/11/2014 16:50 Page 1
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17 November 2014
www.lawgazettejobs.co.uk • 020 7841 5533
JOBS 25
Senior Legacy Officer x 2
Location: RSPCA HQ, Southwater, Horsham, West Sussex
Salary: £46,227.99
Hours: 35 hrs p/w Mon – Fri 9am to 5pm
Closing date: Friday 21 November 2014
The RSPCA is the largest animal welfare charity in England and Wales. Our purpose as the RSPCA is to end cruelty and promote kindness
to animals and to alleviate their suffering.
Following the restructure of the legacy department an exciting opportunity has opened up for two highly skilled and conscientious
senior legacy officers who, working with the head of department, will lead on the strategy for the protection and optimisation of
legacy income. Legacies represent the highest income area for the Society circa £70m pa. These key roles will have line management
responsibility for the 7 Legacy Officers and will be responsible for all aspects of legacy administration and legal support for the legacy
marketing function.
As a qualified lawyer with a sound knowledge of the law and the rules governing contentious and non contentious probate you will
introduce and maintain appropriate performance management mechanisms to ensure the delivery of the department strategy and
provision of regular management information. You will be an excellent communicator with the ability to provide strategic direction and
team leadership across a specialist fundraising area.
Legacy Officer
Location: RSPCA HQ, Southwater, Horsham, West Sussex
Salary: £30,544.20 - £32,334.12
Hours: 35 hrs p/w Mon – Fri 9am to 5pm
Closing date: Friday 21 November 2014
The RSPCA is the largest animal welfare charity in England and Wales. Our purpose as the RSPCA is to end cruelty and promote kindness
to animals and to alleviate their suffering.
We are currently recruiting for a highly skilled and conscientious legacy officer. This is an essential, exciting and mentally stimulating
role. Legacies represent the highest income area for the Society circa £70m pa and working as part of a team, the successful candidate
will be responsible for all aspects of legacy administration and will manage a demanding and varied case load. By building and
developing relationships with executors, solicitors and other stakeholders the successful candidate will optimise legacy income for the
charity.
You will either be a qualified lawyer or have experience pertaining to the role with a high awareness of reputational issues and the ability
to exercise sound professional judgement. You will posses excellent verbal and written communication skills and be highly organised.
For either role, an application form and job description can be downloaded from http://www.rspca.org.uk/utilities/jobs/
jobvacancies
Alternatively, you can request an application from: Jenny Franzmann, Head of Legacy Department, RSPCA, Wilberforce Way,
Southwater, Horsham, West Sussex, RH13 9RS. Telephone: 0300 123 0216. Email: jenny.franzmann@rspca.org.uk quoting reference Senior
Legacy Officer or Legacy Officer. We do not accept CVs.
Please send your completed application form to the above address by the closing date of Friday 21 November 2014.
Interviews will be held at RSPCA HQ, Southwater, Horsham, West Sussex.
The RSPCA offers excellent benefits, including private healthcare, defined contribution pension scheme, childcare vouchers, employee
assistance programme and a subsidised staff restaurant.
We value diversity and encourage applications from all sections of the community.
Ending cruelty, promoting kindness and alleviating suffering to animals.
P22-29.indd 25
13/11/2014 16:07
26 JOBS
CHIEF EXECUTIVE’S
CONVEYANCING ASSISTANT MATERNITY
COVER (12 MONTH FIXED TERM CONTRACT)
£30,648 - £34,494 (pro rata) pa plus £2000 MBSS
You will be a Legal executive/Solicitor /Paralegal and be able to
undertake all aspects of conveyancing and property work, including
development agreements.
Knowledge of Local Government and Social Housing Law would
be desirable.
We are looking for a dynamic, self motivated lawyer who has good
technical knowledge and experience and is keen to broaden their skills.
You will be one of an important number of players within a fast
moving and extremely capable team.
For an Informal discussion about this post please
contact Diana Barrett on 0207 641 2734 or
email dmbarrett@westminster.gov.uk
17 November 2014
LEGALLY QUALIFIED
MEMBERS AND LAY
MEMBERS OF THE
WELSH LANGUAGE
TRIBUNAL
Remuneration - £473 (legally
qualified members) / £200
(lay members) per day plus
reasonable expenses
The Welsh Government is inviting
applications for the roles of legally
qualified members and lay members of
the Welsh Language Tribunal.
For further details and to apply go to
http://wales.gov.uk/about/
recruitment/devolved-tribunals/
vacancies/?lang=en or for queries
contact Huw Williams on 029 2082
6841 or e-mail tyg@cymru.gsi.gov.uk
The closing date for applications is
midnight, 28 November 2014.
To apply for this post, visit the
www.westminster.gov.uk
to download an application pack.
A large print, Braille
or audio version of
this advert can be
obtained by request
from 029 2082 5454.
Alternatively, please call 0870 606
0505 which is staffed from 8.30 am
to 5.30pm. An answerphone is in
use outside office hours.
Ref: 5530
Closing Date: 1st December 2014
GazetteJOBS
The Law Society
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ANTI-TRAFFICKING LEGAL OFFICER
£28,770
The Poppy Project recently received EU funding to open a legal advice centre for victims of trafficking and to provide
training to those working in the criminal justice system. The centre will build on the Project’s extensive community...
LAWYER – CONSUMER ADVICE
£30,000- £42,000
You probably know something about Which? already. We’re the people who test everything from dishwashers to digital
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COMMERCIAL PROPERTY LAWYER
£45,000- £65,000
Rare opening at this prestigious Surrey firm for a bright and ambitious commercial property lawyer to join the team. Broadranging role including landlord and tenant; agreements for lease, new and renewal leases, sales and acquisitions...
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13/11/2014 16:07
JOBS 27
17 November 2014
Are you looking for the opportunity to
build your legal career in one of the
UK’s leading law firms?
Award winning North West law firm Roberts Jackson Solicitors are seeking
to recruit 30 fee earners due to rapid growth and investment.
Roberts Jackson Solicitors is one of the UK’s leading niche Industrial
Disease law firms and specialises solely in diseases caused by
workplace negligence.
We are committed to each and every employee and provide
over 250 hours of training every year within our nationally
recognised award winning training programme. Full training will
be provided with experts, barristers and our specialist teams. We
ensure that our employees are experts in the specialist field of
Industrial Disease and are able to provide exceptional care to all of
our clients.
We require a wide range of candidates from paralegals passionate
about training contracts and development to PQE Lawyers who
want to be nurtured and developed in the following teams:
The right candidates will have commercial awareness, be
passionate about legal services in the Claimant Industrial Disease
field and be dedicated and excited to work for our firm.
•
Asbestos related conditions
•
Occupational Asthma
•
Noise Induced Hearing Loss
•
Occupational Dermatitis
If you want join us in this exciting journey, please send your CV
direct to recruitment@robertsjackson.co.uk
•
VWF
•
RSI
•
Cumulative Back Injuries
Our recent private equity investment has allowed us to accelerate
the growth of the business, capitalise on new opportunities within
the market and build upon our award winning training program.
“
There is a
great future for
those who plan
to succeed
Karen Jackson
CEO of Roberts Jackson
”
You can also visit our careers page at:
www.roberts-jackson.co.uk
This is an excellent opportunity for the right candidate to join a
firm moving rapidly forwards in the legal market.
Roberts Jackson is an equal opportunities employer.
Direct applicants preferred.
Roberts Jackson Limited. Registered office Sandfield House, Water Lane, Wilmslow, Cheshire SK9 5AR Registration No. 6895109 (England) VAT No. 973256496 Authorised and regulated by the Solicitors Regulation Authority
(SRA). SRA No. 512695. A list of directors is open to inspection at the registered office.
Join
us
Cumbria County Council
For more information or to apply online visit
cumbria.gov.uk/jobs
Adult Social Care Litigation, Carlisle - Job Ref: RE692e
Childrens Services Child Care Litigation (2 posts) Carlisle - Job Ref: RE686e
Childrens Services Child Care Litigation Barrow - Job Ref: RE694e
Salary: £24,892 - £25,727 / 37 hours weekly
Cumbria County Council Legal Services unit is seeking to recruit up to 4 Legal Officers to join
our Children’s Services Legal Team and our Litigation Team. The successful applicants will
either have CILEX qualifications or equivalent and / or relevant experience and be prepared
to study for a formal qualification.
3 of the posts will be primarily responsible for supporting solicitors to conduct litigation in child
care cases and 2 of the posts will be based at our Carlisle office and the third at our newly
relocated office in Barrow. Duties will include court applications, liaising with witnesses, the
court and other solicitors.
The fourth post will be based in Carlisle and will support our Adult Social Care Solicitors.
Appointment to the Legal Officer posts in the Children’s Services Legal Team will be
subject to an enhanced vetting check.
Closing date: 1 December 2014. Interview date: 10 December 2014.
For more information and to apply on-line for the above posts please visit
www.cumbria.gov.uk/jobsandcareers or contact (01228) 223333. Please quote
reference number.
In some circumstances a higher starting salary may be paid due to an additional temporary allowance in
line with the Council’s job evaluation scheme. We are committed to diversity and equality of opportunity.
If you have not heard from us within 4 weeks of submitting your application please assume that on
this occasion your application has been unsuccessful.
P22-29.indd 27
Bindmans is a leading London law firm, with a reputation for
excellence and being at the cutting edge of developments in all
areas of public, regulatory, human rights and civil liberties law.
Our Public Law & Human Rights department is looking to recruit for
three positions:
Legal Officers (4 Posts)
Serving the people of Cumbria
Public Law, Human Rights and Court of
Protection lawyers: use your skills to
make rights practical and effective
cumbria.gov.uk
• Solicitor (permanent), 1 + years PQE or equivalent
(Ref: Public.Sol-10/2014)
• Locum Solicitor (maternity cover; eight months fixed term
contract), 1 + years PQE or equivalent (Ref: Locum.Sol-10/2014)
• Experienced paralegal Experienced paralegal (eight
months fixed term contract initially; extension possible)
(Ref: Paralegal-10/2014)
The successful applicants will have experience in at least two of the
following areas:
•
•
•
•
•
General judicial review litigation (other than immigration work);
Commercial and regulatory judicial review;
Community care advice and litigation;
Court of Protection (best interest/contentious work); and
Court of Protection (non contentious finance).
Experience of private law litigation against public authorities is a
desirable criterion for all three posts.
How to apply:
For further details about the role and ‘how to apply’ please visit the
Recruitment Section of our website www.bindmans.com.
Equal Opportunities and Diversity
Bindmans LLP is proud of its commitment to diversity and antidiscrimination. The firm is committed to employing candidates
from all sections of the community and welcome applications from
candidates who wish to job share/work flexibly.
Closing Date for applications: 5pm on Friday 5 December 2014
(interviews are likely to take place in the week beginning 15
December 2014)
STRICTLY NO AGENCY APPLICATIONS
13/11/2014 16:07
28 JOBS
17 November 2014
PROSECUTING,
TRAINING,
ADVISING.
PARACHUTING,
DIVING,
SNOWBOARDING.
Army Lawyers don’t spend every day in court.
The Army’s legal advisors play a vital
role in peacetime and on operations.
Recruiting barristers and solicitors now.
Search Army Lawyer
P22-29.indd 28
13/11/2014 16:07
17 November 2014
NQ Employment Solicitor
Starting at £28,706 pa (dependent on experience).
Full-time, permanent.
Based in Leicester.
ASCL, the leading professional association for secondary school and
college leaders, seeks an NQ employment solicitor to join its in-house legal
department. Working within a team of solicitors, you will deliver advice
and representation on a full range of employment law issues for ASCL and
its members. The work is predominately contentious employment law,
however you will also represent ASCL’s members in associated professional
regulation proceedings.
You will have completed at least one seat in employment law and must
be willing to travel and undertake advocacy as necessary. Excellent
communication, interpersonal and organisational skills and a commitment
to quality are key.
Interested?
Closing date for applications: 5pm Friday 5 December 2014
Interviews: Tuesday 16 December 2014
Start date: Post immediately available from January 2015 (spring start
negotiable)
For an application form and further details, see www.ascl.org.uk/jobs,
email jobs@ascl.org.uk or contact Tirath Sanghera, ASCL HR and Operations
Manager on 0116 2991122
jobs.wycombe.gov.uk
Contracts Lawyer
£39,041 - £42,012 pro rata – 30 hours per week, two year, fixed-term contract
This is an exciting opportunity to deliver major development and shape
the future of Wycombe. Use your procurement and contract skills in this
interesting and challenging role.
For full information and to apply, please go to http://jobs.wycombe.gov.uk
or call our job pack request line 01494 421141 quoting Job Ref: CLL27
Closing date: 3 December 2014.
Interview date: 15/16 December 2014.
JOBS 29
North Hertfordshire
District Council
This is an exciting time to join the Council, with the district set to grow, we are committed
to the services we provide and effective governance underpins everything we do for our
customers. We are therefore pleased to be offering roles for two solicitors, barristers or legal
executives to join our proactive and pragmatic team.
ADVISORY AND LITIGATION LAWYER
37 hours per week, Salary Range: £32,721 - £44,136 per annum, Career Graded
• This role is to undertake a mixed caseload of local government law, focusing on
administrative law, prosecution and civil litigation work.
CONTRACTS LAWYER
37 hours per week, Salary Range: £32,721 - £44,136 per annum, Career Graded
• This role is to undertake a caseload with sole responsibility for all contract and
procurement law work and associated matters.
Both posts are career graded and designated as partial home-working posts. At the upper
grade both roles attract a car allowance of £3,000 per annum.
The successful applicants will be able to:
• Provide a cost effective and high quality legal service
• Undertake a complex, sensitive and varied caseload
• Be forward thinking and dynamic
• Communicate effectively across all levels of the Council
We can offer you an excellent benefits package including a pension scheme, generous leave
allowance, flexi-time, homeworking, leisure concessions and more.
To apply for this position you must complete the Council’s online application form at
www.north-herts.gov.uk under the Jobs and Careers page using our secure web
recruitment tool. Please note that we do not accept CV applications, either on their own or
accompanying application forms. Therefore please ensure that all relevant information is
provided on the application form.
As a Council committed to equality and diversity we welcome applications from all sections
of the community. All full time posts are open to Job Share unless otherwise stated.
Disabled people who meet the person specification will be guaranteed an interview.
To discuss this post, please contact Anthony Roche, North Herts District Council on
01462 474588.
Closing Date: Noon on Friday 28th November 2014
Interviews: 8th and 9th December 2014
As an equal opportunity employer we welcome applications from
all sectors of the community. We offer a generous benefits package
including flexible working and salary pension scheme.
As an equal opportunity employer we welcome applications
from all sectors of the community.
Contracts and Property Lawyer (maternity cover)
Crowmarsh Gifford, South Oxfordshire
Salary: £36,111 to £40,229 per year, Grade 7
Full time: 37 hours per week, fixed term contract up to 1 year
Closing date: 27 November 2014
Interview date: 9 December 2014
Legal Policy Analyst
The City of London Law Society (CLLS) represents over 15,000 solicitors
through individual and corporate membership. Fifty seven of the large
global and national law firms in London are corporate members. Full
details of the work of the CLLS, including the scope of our 19 specialist
Legal Committees, can be found by entering the CLLS website at
www.citysolicitors.org.uk
We wish to appoint a Legal Policy Analyst to guide and support the work
of the CLLS and its specialist Committees. The primary objective of the job
is to further the success of London’s large law firms and the individual will
require a blend of analytical and presentational skills. The individual will
report directly to, and work closely with, the CLLS Chief Executive.
Ideally the individual will be a solicitor with three years’ experience
practising in a large City law firm. However, a law graduate with three years
of relevant policy experience may be suitable.
Please apply in writing with your CV to the CLLS Chief Executive,
4 College Hill, London EC4R 2RB by 29 November 2014.
Further details will be sent to interested applicants.
P22-29.indd 29
South Oxfordshire District Council and Vale of White Horse
District Council are forward thinking local authorities, based in
one of the most attractive areas of the country.
You will provide legal services to the councils, particularly
contracts, property and procurement work. You will be
involved in a diverse range of associated tasks, including
assisting with major procurements, redevelopment and
regeneration projects. You will need to have thorough
knowledge of all of these areas to be considered.
We are looking for a qualified solicitor, barrister or fellow of the
Institute of Legal Executives who thrives on working to tight
deadlines and delivering high quality services.
For a full job description and person specification please
visit https://internal.easyats.co.uk/easywebrecruitment/
welcome/1199?source=5&specificsource=168
13/11/2014 16:07
30 JOBS
EAST OF ENGLAND
BEDFORDSHIRE, CAMBRIDGESHIRE,
ESSEX, HERTFORDSHIRE, NORFOLK,
SUFFOLK
EXPERIENCED
PART-TIME
family solicitor required for a
specialist Family Law firm near
Epping Essex. Apply with your CV to
michelle@divorce-law.org
LONDON
CITY OF LONDON, LONDON
BOROUGHS
SPECIALIST CRIMINAL defence
firm NW1 seek a NQ solicitor or
paralegal with experience of criminal
law for immediate start. Please
email CV and cover letter to info@
goldmanbaileysolicitors.co.uk
PROPERTY SOLICITOR sought by
London City firm. The ideal candidate
will have a minimum of 2 years’ PQE
with experience in both commercial and
residential conveyancing. The role offers
excellent prospects and a competitive
package. Please apply with your CV to
michael.parker@bankskelly.co.uk
PRESTIGIOUS CENTRAL London
Solicitors need Assistant Solicitor in
busy Family Dept. to be in charge of own
caseload, some housing, immediate
start. Excellent salary. Apply with CV
to Box Number N17/01.
GREATER LONDON
WITHIN THE M25
IMMIGRATION CONSULTANT
Solicitor required 3 PQE+ with following
for busy practice for immediate start.
To develop and manage a full range of
Immigration caseload on a consultancy
basis in a Lexcel and Investors in
People Accredited firm. Please send CV
to info@sethi.co.uk
IMMIGRATION PRACTITIONER
N/Q-2yrs PQE required by regional
practice (Richmond office). The
post presents future advancement
possibilities with an established
leading firm. Apply with CV to
Douglass
Simon
Solicitors
at
cabatbat@douglass-simon.com
NORTH EAST
DURHAM, NORTHUMBERLAND,
TYNE & WEAR
SOLICITOR / LEGAL Executive
required at our busy branch office to
undertake conveyancing work and to
develop and expand the department.
Experience in Wills / probate would be
an advantage but not essential. Salary
commensurate
upon
experience.
Please apply by CV to ang.barlow@
salmonssolicitors.net
BOX REPLIES - state the
box number in the subject
line and email to
boxreplies@lawsociety.
org.uk
P30.indd 30
TMJ LEGAL SERVICES, Durham.
Permanent position for conveyancing
solicitor. Private client experience
would be useful. A really good
opportunity for the right person. Salary
commensurate with experience. Apply
with CV hedwardes@tmjlegal.co.uk
NORTH WEST
QUALITY
SOLICITORS
Stockport, partner firm is seeking a
solicitor or paralegal experienced in
personal injury, family and / or Wills to
join our team. Excellent opportunity
with future partnership prospects.
Please send CV to andreabelshaw@
qualitysolicitors.com No Agencies
please.
YORKSHIRE &
THE HUMBER
CHESHIRE, CUMBRIA, GREATER
MANCHESTER, ISLE OF MAN,
LANCASHIRE, MERSEYSIDE
EAST RIDING OF YORKSHIRE, NORTH
YORKSHIRE, SOUTH YORKSHIRE,
WEST YORKSHIRE
DUE TO RETIREMENT Barker
Booth & Eastwood Solicitors in
Blackpool require an experienced
Family Solicitor with at least 5 years
PQE to takeover and handle an existing
caseload of Private Client divorces,
financial and property matters with
minimum supervision. Excellent salary
and long term prospects for the right
candidate. For an informal discussion
about this position please email CV
and covering letter to Tracy Kirkland,
Practice Manager info@bbelaw.co.uk
Closing date for applications Friday
28th November 2014. No Agencies.
COMMERCIAL PROPERTY
IN YORK
Niche property practice needs
dynamic Solicitor to join growing
team handling top quality work
across broad legal spectrum.
Great place to work; excellent pay
/ prospects; happy to consider
all good applicants, regardless
of experience; flexible hours
possible. CV to
john.walker@guestwalker.co.uk
SOLICITOR REQUIRED to join
Family Department of busy firm with
offices in Bolton and Manchester. All
levels of experience will be considered
but panel membership would be a
distinct advantage. Apply with your CV
to john.birtwell@fieldingsporter.
co.uk by Friday 28th of November
2014. No Agencies please.
WE ARE SEEKING a residential
conveyancing solicitor who can work
with their own initiative, scope for flexible
and remote working. Apply in strict
confidence with CV by email to kelly.
walsh@hflegal.co.uk No Agencies.
SOUTH EAST
BERKSHIRE, BUCKINGHAMSHIRE,
EAST SUSSEX, HAMPSHIRE, ISLE
OF WIGHT, KENT, OXFORDSHIRE,
SURREY, WEST SUSSEX
ENTHUSIASTIC CONVEYANCER
sought for expanding busy firm of
Solicitors. Opportunities to work in
Oxford and Milton Keynes. Previous
experience required. SAE. CV's by
email to lking@truemans.org.uk
GazetteJOBS
The Law Society
DON’T MISS THE LAST ISSUES OF 2014
After issues on 17th and 24th November the final issue
will be published on:
Monday 1st December 2014
Booking Deadline:
Tuesday 25th November
First issue of the New Year will be:
Monday 12th January 2015
Booking Deadline:
Tuesday 6th January 2015
DECEMBER
1
2014
JANUARY
12
2015
Advertise your roles in the interim online at
To book your advert contact
Leanne Williams: 020 7841 5426
or email:
gazette-jobsadvertising@lawsociety.org.uk
17 November 2014
PERSONAL INJURY vacancy in
established firm in Chesham, Bucks.
Portal and litigation experience
is preferable. Competitive salary
available. We also have a vacancy for a
Conveyancing Paralegal / Trainee Please
reply by email to m.raja@sheratonssolicitors.co.uk
CONVEYANCER (EXPERIENCED
and able) required for two office West
Sussex Firm. Excellent prospects for
right applicant. CV to khenchley@aol.
com
LOCUM - WILLS, probate and
Elderly Client Fee Earner 4 years+
PQE required to cover maternity
period from Jan / Feb 2015 for 28
hours per week. Contact – Stephen.
Shepperson@sheppersons.co.uk
SOUTH WEST
BRISTOL, CORNWALL, DEVON,
DORSET, GLOUCESTERSHIRE, ISLES
OF SCILLY, SOMERSET, WILTSHIRE
EXPERIENCED CONVEYANCER
needed for small friendly solicitors
practice on Hants / Wilts / Dorset
border. Apply with CV to njd@
fordingbridgesolicitors.co.uk
SENIOR
PROPERTY
Lawyer
required to join our new and expanding
office in Swindon. Salary according
to experience. Apply with your CV to
lisapursey@fsmsolicitors.co.uk
SPECIALIST SOLICITORS firm
with offices in London and Exeter
seeks 1-5 years PQE Employment Law
Solicitor / Barrister to join busy team.
Needs ability to run own case load.
Advocacy opportunities if desired.
Location at Exeter. Salary between
£30,000 - £45,000 subject to experience
and ability. Please send CV and letter to
Yvonne Fairman at law@mils.co.uk
TRAINEESHIPS
TRAINEE SOLICITOR, required
for established North London Practice
who specialise in Civil & Commercial
Litigation, Family Law and Private
Client. Please send your CV and covering
letter to info@proctormoore.com
WANTED - LOCUMS
EXPERIENCED
BARRISTER,
formerly a Solicitor, specialising in
Family and Civil Law seeks locum
work in the North East. Enquiries
telephone 0796 835 2177.
PRACTICES FOR SALE
MERGERS, ACQUISITION
& ASSOCIATION
Probate4u.co.uk practice domain
name for sale. Contact: rmeads@
rmeads.ndonet.com
SELLING? MERGING? VALUING?
Acquiring? Free information from
01494 483728. ray.fox@virgin.net
www.BottomLineConsultancy.com
or www.SolicitorSupermarket.biz
13/11/2014 15:06
SERVICES 31
www.lawgazette.co.uk • 020 7841 5541
14 November
17
October 2013
2014
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Tel: 01769 629162 or www.
fsprobate.co.uk
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TENDERS AND EXPRESSIONS OF INTEREST
ADVERTISING
The Law Society Gazette offers you the ideal
platform to place your tender and expressions
of interest advertisements.
Call Lois Elam on 020 7841 5541
P31.indd 39
Tel: 0800 783 1726
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Advertising enquiries: Ian Sinclair 020 7841 5543
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13/11/2014 11:25
32 BACK BENCH
OBITER
WHAT A CARRY ON
» It’s awards season, which usually means it’s time
for second-rate comedians to cash in and expanding waistlines to squeeze into last year’s tux. But
this year also provided a moment so ironic it would
blow Alanis Morissette’s mind.
Last Wednesday, at the Eclipse Proclaim Personal Injury Awards, the Media Agency Group was
nominated for marketing campaign of the year. The
agency had worked with north-west firm Michael
W Halsall, which trades as claimthroughus.com,
for its medical negligence ads.
The timing was unfortunate – that very morning
the firm had been rebuked by the Advertising Standards Authority for the very same ad.
The ASA said the ad, which featured a drawing of
a doctor in a warning triangle, was likely to cause
‘undue distress’ to pregnant viewers and ‘serious
offence’ to medical professionals.
Alas, the campaign was denied outright victory
on the night by Hilary Meredith solicitors. Commiserations all round to the Media Agency Group.
NAH THEN LAD
32 Obiter.indd 32
The Law Society Gazette,
18 November 2004
Call for claims
self-regulation
Solicitors have
welcomed the
government’s
conclusion that
the UK compensation culture is
a myth, and have
also supported
its threat that
claims farmers
should face a ‘last
chance saloon’ on
regulation unless
they conform to
set standards.
Unveiling the government’s response to the
Better Regulation Task Force’s report on
personal injury litigation last week, the lord
chancellor, Lord Falconer, said he did not
believe there was a litigation-happy society in
the UK as personal injury claims had dropped
by almost 10% in the past year.
16 November 1994
Women’s ‘no’ to wigs and court gowns
Wigs for advocates received a big thumbs
down from women solicitors this week when
they recommended that the lord chancellor abolish historic forms of court dress.
Responding to Lord Mackay’s consultation
paper, the Association of Women Solicitors
called for ‘the abolition of wigs and gowns for
all advocates’.
» Bar Council chair Nick
Lavender is keen to play up
his proletarian credentials
when dismissing ‘lazy stereotypes’ about the profession’s
self-styled elite group.
After removing his flat cap
and muzzling his whippet at
last weekend’s Bar Conference, Lavender told delegates: ‘I myself come from a
mining village near Barnsley,
where most of my family
worked down t’pit’ (presumably paying t’pit owner for
t’privilege etc).
Aye lad, true. But Nick did
go to one of Yorkshire’s best
private schools, Queen Eliz-
17 November 2014
14 November 1984
abeth Grammar, Wakefield
– where he is remembered as
the academic star of his year.
Other QEGS alumni
include dwarf-throwing
aficionado, rugger international and Royal consort
Mike Tindall; 1940s acid
bath murderer George
Haigh; and Stephen Griffiths,
the ‘Crossbow Cannibal’.
Oh, and the editor of the
Gazette, whose grandfather
knew Haigh to talk to and
thought him a ‘nice fella’. It’s
certainly grim up north.
FIND YOUR LANGUAGE
SUGAR COATED
» Obiter is having a virose day. After averruncating a carjacking in the crepuscule we’ve
just received a textonym saying the vaping
whiskerando whose adorkable house we were
on the point of purchasing has just gazanged
the transaction – some complication due to
copyleft or secundogeniture, apparently. Hey
ho, it looks like we’ll be preloading al desko
tonight before going out twerking.
If you’re struggling with one or two of
those terms, don’t panic: they are among
the 722,000 words, meanings and phrases
to appear in the 12th edition of the Collins
English Dictionary, claimed to be the largest
single-volume English dictionary in print.
Obiter has a copy (worth £45) for the reader
who comes up with the best idea either for a
legally-related neologism or an archaic legal
term which should be in wider circulation.
Send suggestions to obiter@lawsociety.org.
uk by 8 December. Usual rules apply.
» Just as it seemed solicitor Lauren Riley
(pictured) was about to be given her marching orders on BBC’s The Apprentice, she was
granted a reprieve, taking her one step closer
– alongside fellow solicitor Felipe AlviarBaquero – to the prospect of becoming Lord
Sugar’s business partner.
Obiter won’t bore you with an episode
synopsis, but Lord
Sugar’s reasons for
nearly firing Riley
were interesting.
He said: ‘I don’t
see true entrepreneurial spirit, I
don’t see you as a
go-getter.’ In fact
she was a ‘typical
safe lawyer’. Could
there be a sounder
endorsement?
Ethiopian famine
It is no longer possible for the world to ignore
the Ethiopian famine in the hope that it will
soon be ‘relieved’ in the course of time. The
slow death of thousands, possibly hundreds
of thousands, of men, women and especially
children must capture the good intentions of
the world’s politicians. The profession cannot
stand idly by. It is inconceivable that every
solicitor in the country would not wish to
help in some way. Every MP must be contacted. Sufficient publicity has to be created
so that Margaret Thatcher is forced to make
the same forcible demands of other governments for action as she made of the British
armed forces in the Falklands conflict.
13 November 1974
The huge cost of buying newspapers
A full-page article in The Sunday Times on
‘The Huge Cost of Going to Law’ purports to
be an informed study of the high cost of litigation… The truth is that the cost of going to
law, as with the cost of running a newspaper,
has to reflect the spiralling inflation which
has occurred over recent years in wages, rent,
paper, telephones and every other outgoing
in the conduct of such an undertaking…
One way of reducing the cost of litigation
is to avoid it. It has occurred to me that, similarly, I might reduce the cost of buying newspapers by eliminating The Sunday Times,
which is the most expensive of them all. If
32,000 lawyers and their families and friends
did likewise, we might be touching the only
nerve to which, I suspect, they are sensitive.
13/11/2014 17:25

insurer in line of fire over client capture

Transcription

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