The bells are ringing, the trumpets are sounding, the medals are being awarded: a great victory has been achieved. This week, the European Commission finally agreed to establish the equivalent of a European justice ministry, a DG (Directorate General) Justice.The campaign followed predictable steps, with hindsight at any rate. We made the first calls for it in 2003, being brushed off by incomprehension and refusals. I made a speech on the topic exactly two years ago to an assembled crowd of Eurocrats, and my arguments were dismissed point-by-point by the director general of the combined DG of justice and home affairs. We begged president Barroso to pay heed to our arguments, but he didn’t. Then he split the justice and home affairs political portfolios at the end of last year, but insisted on keeping a single department to serve them both. This week, reason prevailed, and a separate DG Justice was created. Of course, without anyone from the commission saying so publicly, our arguments have now been accepted as the only natural way of proceeding. Lawyers’ professional concerns were previously swallowed up in a department which considered security and immigration to be among the most important challenges facing Europe, causing justice to be sidelined. Of course, terrorism and immigration are both very important. But where did that leave our issues, dwarfed in that company of giants? The argument goes that it is better that security and justice are in the same department because those proposing stronger security measures should always have in mind the needs of justice. But – forgive the extreme metaphor – that is like saying a thief should decide his own case, since the defendant’s case also needs to be considered. We found that justice concerns were not being taken sufficiently into account. Now, with a department focusing on justice alone, things are definitely improving. For instance, collective redress was previously dealt with by two different DGs altogether – Competition and Consumer Protection. Now DG Justice has joined the group effort responsible for it. But there are still issues lying outside its jurisdiction. I will give two examples. The first relates to legal expenses insurance. I have previously written about the Eschig case (C-199/08), which decided that, even in mass torts cases, claimants have the right to their own lawyer, and not to a lawyer chosen by the insurance company. The legal expenses industry was not happy with the outcome of that case, as was evident by correspondence in the Gazette after my article appeared. Not unnaturally, the industry is now lobbying the EC. We hear that the commission is thinking of issuing a communication next year on how to interpret Eschig. The communication is likely to give guidance on the question of whether an insured person should benefit from the free choice of lawyer already at the stage of legal advice, or only at the stage of representation in court or before an administrative body. There is obviously a vast difference between the two. The commission is currently collecting data from the insurance industry, and would be interested to receive similar data from lawyers. In my view, it is unusual for the commission to issue guidance after a European Court of Justice case has clearly stated its view. The areas being probed by the EC show the hand of the insurance industry behind them: are legal costs higher when the insured has a freely chosen lawyer? Do cases take longer when there is freely chosen lawyer? Yet the free choice of lawyer is one of a citizen’s key rights. I think we all agree that it should not be decided by the insurance industry. It is a fundamental matter of justice, and yet it is being dealt with in DG Internal Market. DG Justice was interested to hear about it from us. I doubt that, when justice issues were more scattered around the DGs, they would have cared so much. That is better. We have also brought to their attention the forthcoming evaluation of the Establishment Directive (98/5/EC), which gives cross-border practice rights to lawyers. This is to be conducted by DG Internal Market, too. It is more properly an internal market matter, since the Establishment Directive is part of the free movement provisions. But the evaluation may turn out to cause a rather large and controversial debate about lawyers’ services, and so DG Justice needs to be a part of it. Again, DG Justice is interested in the topic. But never mind the current omissions from their portfolio. Celebrations are clearly appropriate this week. Break open the champers! Jonathan Goldsmith is the Secretary General of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies
Legal executives could be granted independent rights to provide conveyancing services from next September, if a forthcoming application to the Legal Services Board is successful. But conveyancing solicitors have questioned the economic logic of encouraging new entrants into an already overcrowded market, where transaction rates have dropped by 50% since the start of the recession. ILEX Professional Standards (IPS), the regulator of legal executives, launched a consultation last month on its application for ILEX members to be permitted to undertake all conveyancing work, including those aspects that are classified as reserved instrument activities, without the supervision of a solicitor or barrister. The proposed ‘Conveyancing Certificate’ will enable suitably qualified members to take instructions, prepare documents relating to ‘real and personal estate’, including land transfers or charges under the Land Registration Act 2002, and lodge documents with or make applications to the Land Registry. It is understood that IPS will make a formal application to the LSB in December, with approval expected in June, and the new rules coming into force in September, in time for the licensing of alternative business structures. However, conveyancing solicitors voiced concerns over the proposals. Richard Barnett, chair of the Law Society’s conveyancing and land law committee, said: ‘In a market where conveyancing work has halved, I’d question the economic sense in doing this now. ‘There’s a certain inevitability about it, but the LSB will need to look carefully at whether the training will be given to a high enough standard to ensure consumer protection; whether the business model will be sufficiently robust; and whether it can survive in a market that has contracted by 50%.’ Leading conveyancing solicitor Paul Marsh added: ‘I can’t understand the economic sense of it. There is a massive oversupply of conveyancing firms, and professional indemnity insurance is very difficult for some firms to obtain.’ ‘I’d have thought that a small firm of two or three legal executives setting up to do conveyancing is doomed to fail, even if the market picks up,’ he added. Peter Rodd, partner at Boys & Maughan in Kent, questioned how the consumer would benefit from new entrants coming into an already-overcrowded market where prices were at rock bottom. Law Society president Linda Lee said: ‘We remain confident that the market fully recognises the best people to undertake this type of work are solicitors’ firms. We will do all we can to ensure the public recognise this, and that solicitors suffer no regulatory disadvantage’. IPS chief executive Ian Watson said: ‘We are applying for conveyancing rights as part of the general strategy to enable ILEX, through IPS, to become a regulator of the full range of legal services and ultimately to make an application to become an [ABS] licensing authority.’ ‘The [conveyancing] market is adverse at the moment, but we’re looking to the future. With the Legal Services Act the need is for new ways of providing legal services, and we think our members can contribute to that,’ he said.
Amber Melville-Brown is of counsel at Withers Adakini Ntuli v Howard Donald  EWCA Civ 1276 – ‘Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?’ ‘Loyalty’ might not have been a bad answer to this question, sent in a text by Ms Adakini Ntuli to Take That’s Howard Donald in March this year. English law has long recognised the right to protect private and confidential information, especially that obtained as a result of a pre-existing relationship. ‘There could hardly be anything more intimate or confidential than… the mutual trust and confidences which are shared between husband and wife,’ said the courts in Argyll v Argyll  Ch 302. But decades on from the Swinging Sixties and the courts are not stuck in the dark ages; relationships outside marriage can be similarly protected, as was the case here, and importantly that protection includes the valuable remedy of a pre-publication injunction where there is an imminent threat that private information will be disclosed without authority. I say private, because from the grande dame of breach of confidence – sired by the implementation of the Human Rights Act 1998, which incorporated into English law the European Convention on Human Rights – was born the new kid on the block, misuse of private information, nickname ‘privacy’. However Donald might have replied to Ntuli’s text, he certainly put a call in to his lawyers, while Ntuli’s attentions were directed to the publicist Max Clifford and then, through his office, to the News of the World. Within days, Donald had been granted an injunction to prevent Ntuli from disclosing specified categories of confidential information and the existence of the proceedings; it also granted Donald anonymity. Eight months on, and although the injunction remains in force, the qualities that made it what is commonly referred to these days as a ‘super-injunction’ – notably the anonymity afforded to the applicant, and non-disclosure of the fact of the proceedings and that an injunction had been obtained – have been stripped away. Howard still has an injunction – it is just not quite so super. November saw the latest instalment of this case at the Royal Courts of Justice. Donald argued that the injunction should remain and should also cover the very fact of his relationship with Ntuli, save as known between close friends and family. The defendant, however, cross-appealed, singing a different tune that in light of the undertakings she had given to the court at the return date in March – not to disclose ‘any intimate, personal or sexually explicit or details about their relationship… including any facts of a sexual nature’ – the injunction should not have been made; or, she argued, that its terms, including the word ‘intimate’ were too vague; and/or that the anonymisation and non-disclosure orders were inappropriate. According to Lord Justice Maurice Kay, vice-president of the Court of Appeal Civil Division who heard the matter with the master of the rolls and Lord Justice Sedley, it was this ‘clash of human rights’ that the court needed now to consider. In an injunction application, the well-established principles include that neither article 8, which guarantees the right to respect for private and family life, nor article 10, which guarantees the right to free speech, has as such precedence over the other. Where they are in conflict the court focuses intensely on the facts of the case and the comparative importance of the specific rights being claimed, considering the respective justifications for interfering with each right. Then an ultimate balancing test is applied (see Re S (a child)  a AC 593). Donald argued that his article 8 right was engaged, and in granting the injunction, Eady J agreed that his sexual relations ‘would be matters in respect of which the applicant would have a reasonable expectation of privacy, unless it could be shown that there was a countervailing public interest or that such matters were already genuinely in the public domain’. The Court of Appeal wasn’t persuaded by the argument as to Ntuli’s countervailing rights, that she had a ‘”need” to tell the story of a relationship that went wrong and the reasons for its failure as she sees them by reference to her rights to personal autonomy and self-development’. Neither did Maurice Kay LJ buy the contention that the terms of the injunction were too vague, the words ‘intimate’, ‘personal’ and ‘sexually explicit’ not being ‘mutually exclusive epithets’. The Court of Appeal accepted that the judge had found that, in the context of the relationship, there could be ‘non-sexual but intimate and/or personal details in respect of which Mr Donald was likely to establish at trial that he has a reasonable expectation of privacy’. However, the fat lady had not yet sung, and the second verse of the appeal judgment concerned the anonymity and the non-disclosure provisions. The starting principle in litigation is one of open justice and, accordingly, parties should be named. But justice can sometimes require that it is not seen to be done, or at least not entirely, and there can be a derogation from this principle where ‘the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice’ (A-G v Leveller Magazine Ltd  AC 440). The Court of Appeal understood Donald to be arguing that, without the super-injunction provisions, ‘the media might publicise the fact that “a well-known popular musician” had obtained an injunction which prohibited the publication of (to put it neutrally) salacious details’. The corollary of this would be intrusive speculation by the media and the public as to just what the applicant was seeking to protect. Is X having an affair? Is Y taking drugs? Does Z have a communicable disease? If the applicant is attempting to protect his private life, surely this would defeat the object? But the Court of Appeal did not accept that these provisions were required to protect details of a relationship which it found was not wholly secret, and in respect of which Donald had not tried to impose a condition of secrecy. ‘A simple anonymity order’ or an order limiting publicity to ‘the fact that Mr Donald had obtained an injunction restraining Ms Ntuli from disclosing details of the relationship which existed between them’ could have served Donald’s purpose, it said. Accordingly, the Court of Appeal lifted the anonymity order and confined reporting of the matter to reporting of the judgment. This reporting, of course, is unsurprisingly accompanied by the very speculation forecast. For example, the Daily Mail’s article the following day referred emotively to draconian gagging orders being lifted and Donald being ‘unmasked’ while seeking to ‘silence’ his former partner and ‘suppress a secret’. It went on, in what might or might not have been mock sympathy, to suggest that ‘the judgment… will inevitably lead to speculation on the internet about what he is so desperate to hide’ – presumably at the same time inviting its readers to do just that. Ntuli’s text said it all. She proposed to sell to a national newspaper the private details of her relationship with Donald, which until then, because of the nature of the intimate relationship between them – and loyalty perhaps, which we might all like to hope would be part of our relationships – had remained properly private. It is not surprising that Donald quite rightly sought the recourse of the courts to prevent ‘a sordid spying into the privacy of domestic life’ (Albert v Strange ) and the publication of what might amount to little more than ‘vapid tittle-tattle’ (Campbell v MGN Ltd ). No doubt Donald has felt betrayed at this would-be breach of trust; irritated at the need to engage lawyers to prevent unjustified disclosures; and distressed at seeing column inches of print speculating as to what his ‘secrets’ might be (they are probably no different from the private affairs of many a Daily Mail reader). But perhaps Donald has had the last laugh. After all The Daily Mail sympathises with the Take That star, and the ‘particularly bad timing for Donald. His band released their new album, Progress, on Monday and it has gone straight to the top of the charts’. Bad timing? Perhaps not.
In her letter of 18 November, Judy Solomon suggested that there should be a restriction on those entering the LPC, relating to A-level grades, to ensure that ‘only the best are allowed to practise as solicitors’. My own A-level results were fairly average. Upon leaving school I may well have encountered difficulty in obtaining a university place to study law, had I tried. Instead, I embarked on a nursing career before going on to obtain a 2:1 (Hons) in Law and Accountancy and then a merit in the LPC. I was fortunate to be offered a training contract before starting the LPC with a firm specialising in NHS law. My firm and many others are quick to realise that, very often, mature students have worked hard and, being slightly older, bring experience and commitment to the profession that can far outweigh the often limited skills that only ‘good’ A-levels bring. Getting into law is difficult. It always has been. But who would be the person to decide whether a potential candidate is likely to obtain a training contract or not? Elizabeth J Mitchell, partner, Wood Sherwood Solicitors, York
The claim was issued by A’s descendants, alleging that A and L had made mutual wills, by which A and L’s estate was to be shared between all the descendants of their former marriages. The claimants sought a declaration that the executors, the first to third defendants, held L’s net estate upon a constructive trust for those entitled under his will. The family member descendants were later added as defendants. The first to third defendants accepted service on behalf of all defendants but they assumed the responsibility at first of putting in the only defence. They made no admissions and put the claimants to proof of the agreement to treat the mutual wills as irrevocable. At an early stage, they wrote of their need ‘to steer a median course’ and ‘to be guided by the court’. However, they stoutly resisted the claim, and refused a CPR 36 offer made. The judge allowed the claim, and held that the claimants were entitled to the declaration that a constructive trust existed. There was no appeal against that order. The instant appeal concerned the costs of that action. The judge had ordered that: (i) the defendants were to pay the claimants’ costs on the standard basis if not agreed; (ii) that the first to third defendants should be indemnified from the estate to the extent of their own liability for the claimants’ costs; (iii) the first to third defendants should be indemnified from the estate to the extent of their own costs. In relation to the offer to settle, the judge gave three reasons for finding that it would have been unjust for the defendants to have to pay the additional costs penalties set out in CPR 36.14, namely: (i) the size of the costs, being over £320,000 in relation to an estate of £134,000, meant that it was not possible for the defendants to accept the offers made; (ii) the nature of the case was such that the outcome could not be certainly predicted until after evidence had been given; and (iii) the fact that the offer was not accepted could be properly taken into account under CPR 44 when determining what order for costs ought to be made. The applicants appealed. The respondents cross-appealed. The issues for determination included: (i) whether the ‘rule in probate actions’ applied so that if the testators were really the cause of the litigation, then costs should come out of the estate, or alternatively if the circumstances reasonably led to the investigation of the matter, whether those costs should be left to be borne by those who had incurred them; (ii) whether the first to third defendants, as executors, were entitled to be indemnified by the estate in respect of their own costs and in respect of their own liability for the claimants’ costs; (iii) whether it would be unjust to order the defendants to pay indemnity costs and interest on costs pursuant to CPR 36.14; and (iv) whether the order for the interim payment on account of costs was too low. The court held: (1) In a chancery action for a declaration of constructive trust, the ‘rule in probate actions’ did not apply (see  of the judgment). In the circumstances, the judge had been entitled to find that the contention between the parties was not unlike any other hostile litigation and not such that would enable the court to move away from the general rule that costs follow the event. There would be a plain injustice if the claimants were deprived of any benefit of their success. The challenge by the defendants as to what had been said and done and the legal consequences of that behavior did not provide a reason for departing from the general rule (see  of the judgment). It followed that the judge had been fully entitled to order the defendants to pay the claimants’ costs (see  of the judgment).Evans v Evans  3 All ER 289 distinguished; Mitchell and Mitchell v Gard and Kingwell33 LJPM & A 7 considered; Beddoe, Re, Downes v Cottam [1891-4] All ER Rep Ext 1697 considered; Twist v Tye [1900-3] All ER Rep Ext 1410 considered; Spiers v English 96 LT 582 considered; Plant, Re, Wild v Plant  All ER Rep Ext 751 considered; Gray v Perpetual Trustee Co Ltd  All ER Rep 758 considered; Cutcliffe’s Estate, Re, Le Duc v Veness  3 All ER 642 considered; Fullard, Re, Fullard v King  2 All ER 796 considered; Basham, Re  1 All ER 405 considered; Kostic v Chaplin  All ER (D) 119 (Dec) considered; Olins v Walters  All ER (D) 58 (Jul) considered. (2) In the circumstances, the executors had not conducted themselves reasonably. There was nothing to distinguish their conduct from the conduct of the family member defendants. Their conduct did not exculpate them from the rigour of the ordinary rule that costs follow the event (see - of the judgment). (3) Each of the judge’s reasons for finding that it would be unjust for the defendants to have to pay the additional costs penalties set out in CPR Pt 36.14 was flawed. First, the amount of costs which were to be paid were a matter for a costs judge, and not for executors. That assessment would produce the right figure for the claimants’ costs, and the defendants would be properly condemned in that sum and no greater sum. Secondly, it was almost inevitable in all litigation that the nature of the outcome could not be certainly predicted until after the evidence has been given and even then there was no certainty as to the outcome. Far from uncertainty being a reason not to apply CPR 36, it was all the more reason for parties faced to make or to accept proper offers under CPR 36. Thirdly, CPR 36 was a separate self contained code that could not be taken into account under CPR 44. If the offer was one to which the costs consequences under CPR 36 applied, then although CPR 44.3(4)(c) required the court to have regard to ‘any payment into court or admissible offer to settle’, those words were qualified by the words which followed, namely ‘which is not an offer to which costs consequences under Part 36 apply’. (see - of the judgment). In those circumstances, it could not be considered unjust to allow the claimants interest on costs and for payment of the costs on an indemnity basis (see  of the judgment). (4) It was settled law that CPR Pt 44.3(8) gave the court a discretion to order an amount to be paid on account before the costs are assessed (see  of the judgment). In the circumstances, allowing the appeal, it would be just and fair to order the defendants to pay £50,000 on account of costs (see - of the judgment). Shovelar and others v Lane and others: Court of Appeal, Civil Division (Lord Justice Ward, Moore-Bick and Lady Justice Arden): 12 July 2011 Costs – Probate Grant Crawford (instructed by Humphreys & Co) for the claimants. Richard Dew (instructed by W.F. Smith & Co) for the defendants.
A Law Society campaign has led the government to re-draft legislation to remove uncertainty over whether a dismissed employee’s solicitor may be said to provide ‘independent’ advice on a compromise agreement. Compromise agreements are undertakings between employers and dismissed employees, whereby in return for a severance payment the former employee agrees not to take a case to a tribunal. The original wording of the Equality Act 2010 makes such agreements binding if certain conditions are met, such as the employee receiving advice from an ‘independent adviser’ about the terms. The Law Society’s employment law committee argued that it was unclear whether an employee’s existing solicitor could be said to be an ’independent adviser’, a view that was endorsed by counsel. Last year, a practice note to this effect on the Law Society website received around 16,000 postings from solicitors calling for the wording to be amended. The Law Society lobbied the equalities office (part of the Home Office), and the Equality Act 2010 (Amendment) Order 2012, which came into force on 6 April, now confirms that an employee’s lawyer can be an ‘independent adviser’ for the purposes of preparing a compromise agreement. Law Society president John Wotton said: ‘The wording cast doubt on whether a solicitor for the employee could be recognised as an “independent adviser”. Due to the ambiguity in the legislation, employers would not have been able safely to rely on these agreements without the risk of challenge.’
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Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN
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