Archive for June, 2007

The World turned upside down?

Published
by
NL
on 28/06/2007
in Various (non-housing)
. 0 Comments

Or just shiggled about a bit?

From Lord Falconer and Goldsmith to Jack Straw and Baroness Scotland? Blimey.

I suspect that Baroness Scotland shouldn’t get too comfy. I wouldn’t be at all surprised if the Attorney General role was split shortly, with an independent chief prosecutor role and a government legal advisor role. After all, Brown has made a first stab at getting rid of the appearance of impropriety by relieving civil servants of having to obey the Prime Minister’s special advisors. But it will be interesting to see how the Baroness does, having had a fairly quiet spell as Minister for the Criminal Justice System and Law Reform since 2003.

Jack Straw? Um.

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Submit to me…

Published
by
NL
on 28/06/2007
in Various (non-housing)
. 0 Comments

Nearly Legal is hosting Blawg Review #115, due out this coming Monday 2 July. The Blawg Review is a weekly travelling round up of the best of the recent blawg posts (or whatever has caught the eye of the host).

Anybody who would like to recommed a blawg post, of their own or by someone else, is more than welcome to do so. It would certainly make my job easier and possibly more crazed with power.

Guidelines and the submission form are at

http://blawgreview.blogspot.com/2005/03/submission-guidelines.html 

The Editor of Blawg Review asks that submissions are made via this page, rather than direct to me, so that if Nearly Legal goes under a bus on Saturday, the proud line of reviews can march on regardless.

Of course, anyone contemplating bribery or wishing to engage in corruption is welcome to contact me directly.

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Regime Change

Published
by
NL
on 27/06/2007
in Various (non-housing)
. 0 Comments

So farewell then, Anthony Charles Lynton Blair.

Some achievements of this last government are not to be dismissed. For example: the Human Rights Act; the minimum wage; civil partnerships; the beginning of the SureStart programme; even tax credits (botched execution but with a real effect). But these are the achievements of a government (and one can imagine some of them continuing).

Likewise, the downsides: the erosion of civil liberties; ludicrous managerialism; tabloid-aimed criminal justice policies; massive extension of the earnings gap; demolition of legal aid; etc. etc.. These are the doings of a government (and many will probably continue).

It is possible to imagine these policies being carried through, or proposed at least, by virtually any of the various inhabitants of the cabinet (such as it was).

But if there is one thing that is Blair’s alone, it is Iraq – the disaster of an invasion and occupation that was illegal and unplanned to the point of criminal negligence.

Sure, the rest of them went along with it, agreed or pretended to be convinced by the clearly ludicrous warnings about the ‘threat’. But had any of them been Prime Minister, they wouldn’t actually have done it. I can’t imagine a single one of them initiating and pursuing that course of action.

I expect realpolitik and the abandonment of inconvenient principles from my politicians. I am neither surprised nor shocked by grubby associations with wealth and power, or by demagogic grandstanding.

But I could not stomach Blair after the perverse revelation of his utter lack of moral imagination that was laid bare by his insistence that he ‘did what he thought was right’ and that ‘he had to follow what he believed’ (regardless of anything like evidence). At this point, it became clear that Blair was a moral cretin who understood himself to be Savonarola.

I sincerely hope we can now return to grubby realpolitik tempered by occasional principles. And that I can vote Labour with nothing worse than the ordinary sense of betrayal and disappointment

I take it that it is too wet for the street parties?

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An Act of Selfless Generosity

Published
by
NL
on 25/06/2007
in Various (non-housing)
. 0 Comments

[To any non-UK readers arriving from Blawg Review, this is the latest element in the long saga of proposed reforms to legal aid funding in England. The Legal Services Commission funds legal advice and representation in some areas for the poor, undertaken by franchised private firms.]

I think the MoJ/DCA/LSC has ground me down. I’m too tired of the entire farrago to raise any righteous outrage. So it was only with a supreme effort of will that I forced myself to read the MoJ/DCA response to the report of the Consitutational Affairs Select Committe(PDF) on reforms to Legal Aid. In an act of astonishing generosity, I’ve read it, so you don’t have to (unless you are in Criminal. I don’t know enough about Criminal funding to be rude on your behalf). What Price Justice

I can’t manage fury, not after all this time, so you’ll have to make do with an exhausted exasperation.

Overall, the response says that the DCA/LSC is right about everything. It largely does so by ignoring criticism or wilfully avoiding the point. Take this astonishing example from page 39. First, the Committee’s recommendations:

Recommendation 31. The most profitable and efficient legal aid providers are not necessarily always the ones providing clients with advice and representation at the highest quality. We note with interest the fact that the LSC initially tried to present evidence of a link between efficiency and quality of legal aid providers on their peer review programme, a position they did not persist with. The LSC has a substantial peer review programme and the absence of a robust link between quality and efficiency is telling. Similarly, we would have expected the LSC to produce evidence of a link between the size of a firm and the quality of its work to support its reform proposals if such evidence were available. It has not. (Paragraph 183)

Recommendation 32. Restructuring and growing in size might be a solution for criminal legal aid firms in London and other major cities to improve their efficiency and provide services in a more localised way, thus reducing the time spent travelling to advice and represent clients in police stations and magistrates’ courts. However, the move to fewer, larger suppliers is a solution confined to geographical areas and categories of the law where there is clear over-supply. The welcome desire to reduce the LSC’s administration and transaction costs through a reduction in the number of firms it has to deal with must be balanced against the risk to the availability and quality of publicly funded legal advice and representation associated with a reduction in the number of legal aid suppliers. (Paragraph 187)

These two recommendations are a pretty devastating critique of two of the shibboleths of the reforms: efficency = quality, big = better. What is the LSC response?

103. No decision has yet been taken on the existence or level of any minimum contract size for access to police station work. We will set out our decision on the introduction of a minimum contract size, after the conclusion of the consultation on the allocation of police station and magistrates’ courts slot allocation.

Truly amazing. Utterly avoiding the point. One can only presume that the LSC had no answer and none of the evidence requested, but does this give them pause for thought? No.

Where absolutely pushed, for instance by Recommendation 20 on the ‘breathtaking risk’ of the reforms, the response is flatly ‘we don’t agree’ (para 66, p.26).

It is clear from the responses just how much of a wing and a prayer approach the LSC is taking. Take for example – competition, the goal and justification of the whole reform process.

After the flat fee period comes competitive tendering for a reduced number of contracts. What happens to firms that don’t get a contract? Why, they leave Legal Aid, of course.

So, what happens in the second round of competitive tendering? Either still fewer firms get contracts and the rest leave Legal Aid or the same firms get contracts. And the next round… You see where this is going. Very shortly, there is no competition.

The LSC has an answer to this. There will, of course, be New Entrants. (I’ve italicised these marvellous, even mythical creatures).

This begs the obvious question. Why would anyone seek to enter a market that is controlled so that it produces constant reductions in income, rather than reward new, innovative practice? The LSC argues that innovative practice will be rewarded as long as it is ever more ‘efficient’, thus increasing profits from diminishing income. This is not rewarding innovation, it is just penalising it less.

The Select Committe asked this question in various ways in Recommendations 24 -26. The LSC’s response? “We are going to consult on this later in the year”.(p36).

This means that we are heading towards a supposedly competitive market which will die on its knees without new entrants, and the LSC hasn’t got a clue how they are going to set it up yet.

Why anyone with a private practice would even consider entering Legal Aid in the future is beyond me. But the LSC is forced by its own blind logic to evade the fact that the existing supplier base is all it has got and all it is going to have.

Another example is the likely effect on BME firms. The LSC response to this issue on p.42 para 108 contains considerable obfuscation. In effect, the LSC says there won’t be an impact ‘concentrated’ on BME firms, because there are many in London and the reforms will hit all London firms, BME or white owned, equally. And as the LSC is committed to ensuring supply in London, all will be OK.

But if you have a quick think, this amounts to an admission that there will be a disproportionate impact on BME managed firms. BME firms tend to be small, and as the LSC states at para 15 , the aim for London is large providers. The Select Committee raised this issue, but receives no substantive response.

All in all, there is, I’m afraid, absolutely nothing new in there, apart from slight delays in introducing certain fee rates in Mental Health. Nor, as far as I can tell, is there any attempt to seriously address the issues and concerns raised by the Select Committee. I do hope the Committee still has the energy and opportunity for a robust reply.

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Criminal behaviour

Published
by
NL
on 24/06/2007
in Various (non-housing)
. 0 Comments

These are tough times for Criminal practices. There are anecdotal reports of floods of practioners trying to get jobs with the CPS, getting out of the profession, or even (shudder) trying to switch to conveyancing (just in time for Tesco Law to wipe out that sector).

As if the LSC hadn’t dreamt up enough problems for these unfortunates, it has taken to fannying about with the duty solicitor rota scheme. A new scheme, allegedly based on historical volumes of work, was to be implemented about now. Some firms faced significant cuts and acted accordingly.

Now the LSC has withdrawn the scheme, until October at least, because the data on which it was based was ‘inaccurate’. Marvellous.
Kaim Todner, a South London firm, had made redundancies based on the new scheme and are now steamingly furious and ‘taking legal advice’.

Meanwhile, north of the river, I have heard that a North London firm, faced with flat fees for police station attendances, has come up with a cunning plan to keep its income up. Screw the staff.

The firm is to introduce shifts so that it can do away with overtime or out of hours pay. It isn’t much of a step from professional to proletarian, after all. I have also heard staff responses to this wheeze, which are understandably abuse laden. Conveyancing might not seem like a bad option.

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YL v Birmingham City Council and others

Published
by
NL
on 20/06/2007
in Community care and Housing law - All
. 0 Comments

I haven’t had a chance to look at the judgment in full (YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others [2007] UKHL 27), but the House of Lords has today decided 3 to 2 (Lord Bingham and Lady Hale dissenting), that a private care home place obtained and funded by a Local Authority pursuant to the National Assistance Act does not fall under the Human Rights Act, as the care Home is not carrying out a public function.

This will bear a close look as it might well have wider ramifications on private bodies carrying out public functions. Possibly more to follow…

[Edit 21 June.  Head of Legal has an interesting take on the judgments, suggesting exactly this.]

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Champagne does not affect professional judgment

Published
by
NL
on 19/06/2007
in Various (non-housing)
. 0 Comments

Or so says David Pannick QC.

Somewhere back in the mists of time, I suggested that Chambers hosting schmoozing parties didn’t have much effect on solicitors’ choice of barrister, at least in my experience.

David Pannick’s response to a rather sniffy Bar Standards Board consultation paper on the perceived propriety of chambers getting solicitors squiffy for free begs to differ at the same time as agreeing with me. The article is truly hilarious, if not perhaps wholly deliberately so.

Beginning, naturally, with a classical quote (in translation, alas), and followed by a reference to H. L. Mencken, this being written for a newspaper after all, we move right to the heart of the matter. I summarise and comment:romans

Whatever the public might think of barristers stuffing Ferrero Roche down solicitor’s gullets is neither here nor there.

Quite right, there is no privity of contract with the great unwashed, after all, and there is no need to ensure their trust in one’s appearance as an independent member of the Bar as long as the client can’t prove anything.

It is also ludicrous to think that a solicitor would have their professional judgment in choosing Counsel impaired by said Counsel brandishing tickets to Centre Court and a magnum of ‘poo. Where is the evidence?

Again, quite right. Solicitors are reknown for their utter lack of self-interest and their ability to set aside any thought of strawberries and cream accompanied by the thighs of [insert tennis player of choice] in the greater interest of their client.

So, given that solicitors are, by definition, uncorrupted by the temple of delights that Chambers, genii-like, lay before them, why do it? Well, and I quote:

The object of hospitality [...] is rather to communicate the expertise of the barristers to the solicitor in a relaxing and enjoyable environment, so that the solicitor can be better informed about whether particular barristers have the qualities that are needed by the solicitor’s clients.

Of course. The way I prefer to exercise my professional judgment is to be enjoyably relaxed for free at some length so that I am in a suitable state for a barrister to better inform me as to his or her qualities. I feel I make my best judgments in this way, so I seek such enjoyable and informative relaxation at every opportunity.

David Pannick QC is quite right to suggest that marketing is important, and particularly so for the junior Bar, and also to suggest that the Bar Standards Council has come over all Patricia Hewitt in this consultation. But, much though I enjoy the (usually lukewarm – standards have slipped) champagne, might I suggest Chambers could consider more cost effective marketing, one that doesn’t have the downside of potentially making the solicitor – counsel relationship look a bit sad to the punters?

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And they didn't leave a tip

Published
by
NL
on 17/06/2007
in Various (non-housing)
. 0 Comments

Who would have thought that restaurant reviews would turn out to be the vanguard of defamation law?

Recent results from the High Court in Belfast and the High Court of New South Wales in Oz suggest a disturbing trend.

In February, in Belfast, a jury found that a review of ‘Goodfellas Pizzeria’ that pointed out that the meat in a dish of squid was “a grey translucent colour”, the pate without flavour and the meal as a whole “very disappointing”, was defamatory, in the face of the defence of fair comment and justification. It appears that the finding of defamation covered opinion as well as factual statements. The pizzeria was awarded £25K.

The newspaper is pursuing an appeal, presumably on the basis that a Belfast jury can’t be expected to know what good food looks and tastes like.

Meanwhile, a review of Coco Roco restaurant in Sydney, Australia (now mercifully no more, judging by the menu) was found to be defamatory by the High Court, on appeal. (Worth reading the link for the review). Here the finding was of ‘business defamation’, where the test is whether the words are likely to cause injury to a person in the exercise of their trade or profession by suggesting unfitness or incompetence, rather than the personal form of lowering a person in the eyes of right-thinking members of the community.

This is an interim finding in the case, as the newspaper has still to submit a defence, but one would imagine that it only leaves the paper with justification, as the fair comment approach has been effectively ruled out.

That is surely a bit of a blow to critics in Oz. Any suggestion that someone is not very good at what they are doing would open up ‘business defamation’, as far as I can see. The crap chef, the bad writer, the agonisingly shrill pop singer, etc, can all leap up and point to the professional injury caused by the suggestion of their incompetence. Australia, land of the litigious mediocrity?

As someone who was once a professional critic (non food related), I suppose I am hardly neutral on this issue. But while ‘if you can’t say anything nice, don’t say anything’ might be a good rule when meeting the putative in-laws for the first time, it is also a good way to kill a culture. Besides, sometimes Beauty and Pleasure themselves cry to the heavens for vengeance. I’m looking at you, Lloyd Webber…

[Edit. Thanks to Martin in the comments for pointing out Eoin O'Dell's post on these cases. Well worth reading.]

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Waxed Moustaches

Published
by
NL
on 13/06/2007
in Assured Shorthold tenancy, Disrepair, Housing law - All and Possession
. 0 Comments

I caught someone from the National Citizens Advice Bureau on BBC Breakfast this morning, commenting on a CAB report on the large number of people in private rented properties in bad condition who are promptly evicted if they complain or do anything about the disrepair.

Anecdotally, I’d certainly support this. We do hear from quite a few private tenants who have received notice or possession orders after raising repairs, or getting an inspection by the local authority environmental health. Often these people have been living in deadful conditions with only silence or worse from the landlord.

As the CAB spokeswoman pointed out, there is little or nothing to stop this happening once the fixed period of an assured shorthold has elapsed. Apparently, Australia has some form of protection from eviction while disrepair issues are underway. I’ll try to find out about this – could be interesting.

moustache.pngAs it is, English tenants can only hope that their landlord is dim or greedy, because if the landlord goes the s.21/accelerated possession route, there is nothing they can do to prevent or delay possession if they are out of the fixed period. A separate claim for disrepair is possible, but always tricky when the ex-tenant is out of the property.

If the landlord is greedy, and if there are rent arrears, the tenant may be luckier. A possession claim on the basis of section 8 and/or 11 and 12 – all rent arrears of some form – presents the possibility of a disrepair counterclaim. This will certainly delay possession and, if the damages are enough to wipe out the arrears, put paid to the possession claim. The landlord will have to start afresh with a s.21 procedure, as one can’t run two possession claims side by side or amend the claim to insert grounds that weren’t in the Notice.

We had a case like this some months ago. Greedy or ill-advised landlord (because they were represented) made a s.8 claim for possession, after being served with a works order by the council once the client/tenant got Environmental Health in. The client, luckily, came to us. The rent arrears were substantial, but the disrepair significant. An immediate disrepair counterclaim was served. Of course, the matter then took many months to get to final hearing, and the result was that the damages more than cleared the arrears, possession claim dismissed, and the client had a grand or two over coming in damages and an enforceable order for repairs. We got costs…

But these are the very lucky exceptions. The CAB are calling for tenancy safeguards in these situations. It is, of course, a good idea, but frankly I can’t see any legislation happening soon. Everything will likely be put on hold pending the final report of the Law Commission review of housing law, which will be along in…a bit.

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Housing Duty – stating the obvious

Published
by
NL
on 12/06/2007
in FLW case note, Homeless and Housing law - All
. 0 Comments

For once, Birmingham was on the winning side of an entirely predictable Court of Appeal judgment on homelessness law. Omar -v- Birmingham City Council 2007. (7 June 2007. Times Report. Not yet freely available elsewhere)

Birmingham had discharged duty to the appellant after he refused an offer of permanent accommodation, which was found to be suitable on review. Omar appealed on the basis that the offer letter had stated that it was ‘a final offer’ and that this did not comply with the requirements of s.193(7) Housing Act 1996, which states

(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.

(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).

The statement that this was ‘a final offer’ was contended not to state that this was an offer of accomodation under Part VI, and so not meet the requirements of (7). The Appeal to the County Court was dismissed and taken to the Court of Appeal.

The Court of Appeal dismissed the appeal, holding that the explict reference to a final offer could only mean an offer under Part VI. The terms of (7) were mandatory, but there was no need to rigidly follow a form of words if the point was conveyed adequately. Here, the addition of words to the effect that this was an offer under Part VI would not add anything useful or necessary for the appellant’s understanding.

Apparently some County Court appeal judgments had gone the other way, which is a surprise. What isn’t a surprise is the Court of Appeal verdict. To be honest, I’ve never seen any client who didn’t understand they were only getting the one offer and that this would be the end of it. What the clients do get very confused about is what constitutes ’suitable’, usually being wildly over-optimistic.

In any case, the Court apparently adds for good measure, the appellant’s refusal also fell under s.193(5):

(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

The rolling together of s.193(5) and (7) here is interesting. The way it is done appears to mean that (7) is more or less irrelevant if (5) is to apply to any offer, whether temporary or permanent accommodation (a Part VI offer). If so, this is slightly worrying, because (5) only has a test of ’suitable’, where (7F) gives a two part test – ’suitable’ and ‘reasonable for him to accept’. It is entirely possible for an offer to be suitable but not ‘reasonable to accept’, as this latter is a subjective test (Slater v LB Lewisham (2006) [2006] EWCA Civ 394). I’m awaiting an approved judgment to see about this, because I’m not sure that (5) should apply to Part VI offers of permanent tenancy.

Nearly Legal’s sage words to anyone facing their one offer are take the offer and request a review of suitability at the same time, thus minimising the risk of ending with nothing. There has to be a very significant problem for an offer not to be suitable, on the order of being placed near to a previous abuser, or at a virtually impossible distance from medical support structures, for instance. Not liking the layout of the bathroom or the view from the front window won’t do (and yes, I have heard those put forward).

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