The Joy of Housing Law
Or strictly speaking the ad for me.
I’m due to qualify at the end of September and so I’m hunting for a newly qualified post. Anyone interested in employing an experienced, enthusiastic, dedicated and, casting false modesty to the winds, frankly damn good housing/landlord and tenant solicitor is very welcome to email me at the contact (at) nearlylegal.co.uk address.
On the back of tonight’s Panorama on the BBC about the impact of the mortgage/price housing market problems (available for the next week on iplayer), the Beeb has an interview with and tips from DJ Stephen Gould of Kingston-upon-Thames County Court. All sensible stuff for someone facing a repossession claim.
My grateful thanks to Free Movement for finding this, posting about it and passing it on. A Law Society letter of 2 April 2008 setting out the terms of the settlement of the Law Society’s litigation against the Legal Services Commission has been leaked. A PDF of the letter is here. Apparently, a ministerial statement has been laid before parliament.
[Edit 3 April 08: official Law Society press reports are now released and available here. Only a brief scoop then.]
The main terms follow below, but I have to agree with Free Movement that it doesn’t look like a lot.
There are some minor increases in some fixed fees and some hourly rates, although not the main civil litigation rate. There are a set of joint reviews to take place. The bigger points seem to be under ‘certainty’. The Unified Contract to continue to April 2010 (despite the LSC threats to terminate it). No competitive tendering for civil until 2013 and a 6 month delay in introducing best value tendering for criminal.
However, particularly of interest to housing litigators, there is no mention of whether the transition to set fee scale from hourly rates in certificated work is going ahead or whether it is caught by the LSC’s ‘acceptance’ that its right to amend contracts is significantly curtailed. I presume it is going ahead.
Also of interest are the CLAC and CLAN provisions. Apparently the LSC will announce ‘after the local elections’ where the next swathe will be, with no more till April 2010.
Hmmm. As the letter acknowledges
Whilst we are pleased at the benefits achieved by the litigation, we do not consider this settlement to be the answer to all the problems facing legal aid providers. We know that many aspects of the Standard Fee Schemes continue to give serious cause for concern.
That seems like understatement. The Law Society’s justification for the settlement is as follows:
It is important to understand the limits of what could have been achieved from success in the litigation. A hearing date for our case had been fixed for late June 2008. Had we not reached a settlement, the LSC would have terminated contracts with a view to introducing new contracts in the autumn in which the graduated fee schemes were unchallengeable. This means that there would have been no prospect of returning to hourly rates. The profession would have been left with a historic dispute over whether they should have been paid on a different basis during this one year, and a prolonged period of disruption and uncertainty.
There is truth in that. But I don’t see how there is currently any prospect of returning to hourly rates either, save for a complete volte face by the LSC. I guess the Law Society considers itself to have bought time for the unworkableness of the whole shebang to become apparent prior to actually being introduced.
——————-
From the letter:
Terms of settlement
Financial benefits
A revised approach to unrecouped payments on account from more than six years ago – subject to cases involving dishonesty and / or greater than £20,000 on an individual case.
An increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08
An increase of 2% in the hourly rates only for Level 2 Family Help lower
Care level 2 fee increased from £347 to £405
5% increase in CLR fees and rates for mental health (whether paid as standard fee cases or exceptional claims), plus 2% for remote travel payments
5% increase in CLR fees and rates for asylum and immigration cases covered by the standard fee scheme (whether paid as standard fee cases or exceptional claims)
New rules on Standard Monthly Payments so that changes will not happen so often, so unpredictably and with such large variations
Stability measures
A commitment by the LSC (subject to certain caveats, particularly relating to CLACs and CLANs) not to terminate the Unified Contract before it expires through effluxion of time in April 2010
Deferment of the further changes to family fee schemes (including standard fees for private law family litigation, adjustments to the escape threshold for care standard fees, and a new advocacy fee scheme) which had been due this year, until April 2010
Acceptance by the LSC that their right to amend contracts is significantly curtailed, and that therefore the historic approach of making significant structural changes during the life of a contract cannot continue
The rule on remainder work will be changed so that firms are entitled to undertake it for two years after termination of their contract, so long as it has not been terminated for fault.
Certainty
The LSC is publishing a route map for civil and family legal aid showing the way forward until 2013, in which it commits not to introduce price competitive tendering for civil and family cases before 2013
The LSC is announcing a delay of six months to the earliest possible date for the introduction of best value tendering for crime, and will publish a full route map in its response to the BVT consultation
The LSC is publishing (once purdah for the local elections is out of the way) a list of the areas in which CLACs or CLANs may be introduced before April 2010. No CLACs or CLANs will be launched outside these areas before that date.
Reviews
The following reviews are being set up, with terms of reference settled in the course of negotiations all reviews to be published.:
The setting up of a Consultative Group equivalent to the Criminal Contracts Consultative Group. An early task for this group will be a full review of the new fee structures
A joint review of peer review accreditation, the specialist quality mark and other quality assurance issues.
A joint working group to address concerns about the contract compliance audit processes.
A joint review of the immigration stage billing problem, with a report to be published by 30th June 2008.
Law Society involvement in the evaluation of CLACs and CLANs, including our Head of Research to be on the advisory board
LSC introduces new IT system to file matter start funding claims. System promptly doesn’t work. Three months later, system still doesn’t work. Any idea when it will work? Errrr no. So we send in Excel forms instead.
LSC says “It’s not working as well as it could but it’s not meltdown or anything. We are now in the process of a recovery strategy”.
My giggles are not enough to stop me being pedantic. Can one actually be ‘in the process of a strategy’? Does this mean ‘in the process of coming up with a strategy’? Or ‘in the process of implementing a strategy’? Or, more likely both at once, in the sense of ‘making it up as we go along’?
I haven’t posted about the Shelter staff dispute until now, partly because I was hoping it would be resolved and partly because I had little to add.
I have been prodded into posting by a comment by Mark P. As he observes, Shelter management are in the vanguard of the NfP sector in ‘ensuring competitiveness’ in the chase for future competitive bidding for LSC franchises. Shelter’s management rather disingenuously argue that as the frontline services are the major recipient of state funding, it is frontline services that should bear the brunt of the ‘efficiencies’ (link goes to a .doc, courtesy of Nik Nicol).
What Shelter are doing today will inevitably be a model or rationale for the NfP sector (and quite possibly private firms as well). It is therefore of much broader significance than ‘just’ Shelter, if that wasn’t enough.
After 2 days of strikes (4 and 10 March), things have clearly got nasty, with tales of high pressure individual interviews pushing the new contracts under threat of dismissal.
But there is still amusement to be had. Witness Adam Sampson, Shelter CEO, claiming support, via a link, to be found in a post by Bridget Fox, Lib Dem candidate for Islington South. Then note that Fox’s post doesn’t offer support for Shelter management, it just opposes Ken Loach’s call to stop donations. Next, observe Fox backing frantically away from having to say anything contentious in the comments to the post as she is confronted by a couple of Shelter staffers explaining the dispute and highlighting heavy-handed treatment by management.
It appears that this was the most supportive link that Mr Sampson could find.
Madeleine Bunting has an editorial in the Grauniad decrying the civil legal aid reforms, in particular for the effect on the Not for Profits, as well as the ‘paralegal in call centre’ approach.
Apparently Gateshead Law Centre went into receivership last week and Devon (Plymouth?) is on the brink.
As far as I recall, these are both examples of the ‘Not London’ areas that the LSC was insisting would actually see an increase in income from the £171 fixed fee Legal Help. Hmm.
Somehow, I suspect we’ll see more Law Centre closures before too long.
This post is about paralegals and barristers in legal aid work. Which means that it will mostly turn out to be about solicitors.
The latest Legal Action (March 2008) has a rather dispiriting, but unsurprising piece on the results of a Young Legal Aid Lawyers’ survey into working practices pay and conditions. For paralegals in legal aid practices, pay turned out to be bleeding awful, with some on as little as £7500 pa. Virtually all were doing casework (over 90%), virtually all received no formal training. Many found themselves in the paralegal/trainee post hell that I encountered nearly two years ago (there being no traineeship, save as a carrot/stick).
Such is is the way of the future. If the current reforms proceed, the paralegal factory is how firms will have to go. A swathe of paralegals, with limited training (and even more limited prospects) doing advice work, with a ’supervising’ solicitor ensuring standards (cough) and picking out the more complicated matters (cough). Some firms have a version of this in place already, although not mine.
Naturally, I mean no offence to paralegals (I was one for quite some time) when I say that by and large they are just not up to giving detailed adequate advice, spotting essential detail or running cases. It is a matter of training and the time to properly consider what they are doing. There are, of course, many exceptions, but I am talking about a general situation rather than individual practices.
One slightly surprising side effect of this is the effect on barristers. One counsel I was chatting to recently, while grabbing a coffee in lieu of lunch during a day hearing, said that it was a) often noticeable when a brief came from a paralegal, as much of the necessary detail was missing and the overview of the merits and issues of the case absent, and b) Counsel had to spend quite a bit of time pretty much running the case from chambers, giving instruction on the work and documents needed. On the basis that Counsels’ aptitude rarely extends to running cases, I’d agree that this is a bad thing.
Why is this actually about solicitors? Because this displacement of skilled work - to cheap paralegals and via them, unpaid, onto counsel in some cases - is from the work that used to be done by legal aid solicitors. It is the position of solicitors, or more accurately firms, that is key.
Unfortunately, while in most pyramid schemes, broadening the base level results in a increase in income for the top level, that isn’t so here, where broadening the base is a survival tactic for legal aid firms. (One suspects that this base broadening effect will extend beyond paralegals to associate solicitors in due course).
As the YLAL article points out, the impact of the spread of the paralegal factory is significant: one the quality of assistance to clients (whatever anyone says about ensuring standards); on the job role of the supervising solicitors - which is likely to become akin to the PI processing plants; on the next intake of legal aid solicitors (what are the odds of actually getting a traineeship in such a situation?); and even on the work Counsel find themselves doing.
But there will be more ‘acts of advice’, probably, so that’s all perfectly satisfactory.
With my usual and frankly uncanny ability to be a couple of days ahead of the zeitgeist, I posted on litigants-in-person a few days ago, only to see the Guardian do a feature piece on LiPs today. Granted they put a little more effort into it, and actually interviewed people and things like that, but we say pretty much the same things.
In addition, my post is much, much shorter, and so, brevity being not only a virtue but a mark of elegance, I can only pity the poor Guardian having to play catch up by substituting a modicum of effort and research for pith.
The Guardian article is actually quite an interesting piece. It cites a 2005 survey that found many that LiPs considered that:
lawyers were not necessary or not best placed to advance their interests. They saw themselves as more factually expert in their dispute and more able to manage their case than a lawyer - or they just wanted to “have their say”. Less constrained by legal notions of relevance, they could advance arguments or raise issues that a lawyer would not.
But of course, they can’t, because that is not how the Courts work. The result is, as the survey showed, that:
those who handle their own litigation make more mistakes than lawyers do - and more serious mistakes - and that the outcomes of their cases are generally worse than for those who are legally represented.
Nonetheless, their numbers are on the increase, driven by income limits on legal aid. Apparently Family matters have the largest proportion, which should come as no surprise.
There is one quote, from an Appeal Court Judge, that eloquently sums up the view of the LiP at appellate level. Forgive me quoting at length:
There is no sight more depressing than that of a litigant in person, borne down by frustration, anger and plastic bags filled with unsorted paper, staring up at the judge in the expectation of some quietus. What he wants, no court can give: some public acknowledgement and satisfaction for a deeply felt grievance, some release from the anger and misery induced by a resentment growing ever stronger as the years have passed. If only someone had listened and appreciated the hurt early on.
But by the time the litigant in person gets to court it is all too late. The time for listening has passed. The court, often faced with vituperation expressed in green ink or inadequate spacing between the lines typed on an old Olivetti, cannot hear what may have been a genuine cause for complaint because the complaint is lost in the sound and fury, and the litigant won’t listen because no one has been prepared to listen to him in the years gone by.
What is needed is not only understanding but therapy. The courts grapple with the former, but they inevitably fail to provide the latter.
This is unfair to many LiPs, who are doing it because they have to. However, the desperate and hopeless appeal, made in the conviction of the utter rightness of the cause, is the mark of the archetypal LiP, and, going by my visits to the Admin Court office or the Court of Appeal office, there are no shortage of those at present. The real question is why are they always in front of me in the queue?
The CAB at the RCJ is also mentioned in the piece. Given the number of what might be euphemistically described as ‘interesting’ calls we get from people who say that this CAB has ‘referred’ them to us, their daily work must be extraordinary.
Later on, I ended up browsing the list of vexatious litigants at the HMCS site. Now there is a documentary waiting to happen. How about:
ARNOLD, Dorothy Mignon (aka Gracie) who became a vexatious litigant on 17 December 1956
or BEBBINGTON, Ann Marjorie (aka EASTON, Ann Cholmondeley) - 31 January 1969
or O’NEILL, Thomas (aka Lord Charles Leslie Falconer of Thoronton) - 9 June 1998
The idea is going cheap…
Pupil barrister Scribbler encounters a litigant-in-person in action for the first time, and he sounds like a classic of the genre, issuing against multiple defendants ’so they could come to court to explain themselves’, regardless of whether they actually had much to do with the case.
Of course, it has to be said that there are people who conduct their own cases effectively and with considerable ability, but many are on a crusade for justice, ignoring the eminently sensible cautions set out by Jacquig at Bloody Relations (for family cases, but the general principles apply elsewhere), and all too often the lawyers on one side end up more or less managing the whole process. As barristers must recall with a sinking heart, they are expected to assist an opposing litigant-in-person in court (not of course in making their case, but in the conduct of it in court).
But in these days of shrinking availability of legal aid for many matters, and of extremely limited financial eligibility for it, the lawyer’s traditional attitude to litigants-in-person perhaps smacks too much of special pleading.
We tend to assume that access to justice means first of all access to lawyers. For many, many people, those not abjectly poor enough to get legal aid, not rich enough to afford a solicitor let alone a barrister, this will only raise a bitter laugh. If it isn’t suitable for a CFA, then the only option is DIY. Access to justice firstly and properly means the opportunity to take one’s case to a court and I suspect we will see a lot more litigants-in-person, beyond their current stamping grounds of the small claims courts, LVT and assorted tribunals.
[Edit 5/02/08. And now the sine qua non of the litigant-in-person, Heather Mills prepares for a five day High Court hearing in her divorce.]
The judgment in Minister for Legal Aid v Main, R (on the application of) [2007] EWCA Civ 1147 might be of limited general applicability, concerning as it does the provision of ’special case’ legal aid funding for inquests, but one passage in the judgment caught my eye:
The relevant statutory provisions and the non-statutory material are somewhat complex. We were shown extracts from a “Legal Services Commission Manual”, which purports to explain the applicable directions and guidance. However, it confuses matters by mixing material from various sources without precise attribution. We were told that it has now been replaced by a clearer document. Meanwhile, we are grateful to Miss Nathalie Lieven QC for providing us with a guide to the guide.
Oh, we’ve all been there, my Lords, unfortunately usually without a helpful QC.
Meanwhile, buried in a small Observer article on Sunday, was the news that the Ministry of Justice is facing a 3% ‘efficiency saving’ (budget cut) across the board.
That includes the prison service - losing £180 million, the Courts - losing £102 million, Tribunal service - losing £39 million, and, of course, the legal aid fund - losing £193 million.
Does this £193 million come from the fund alone? From the fund and the LSC’s operating costs? Just the LSC’s costs? We need to be told. If it is from the fund alone, this is a nonsense.
Add to that soon-to-be merged courts with reduced admin staff (as if the courts weren’t already in a slow collapse. For instance, has anybody had a non-standard Order drawn correctly recently?), and reduced funding for a prison service stretched beyond capacity. It looks like the Lord Chief Justice was quite right to be worried about budget pressures in the new MoJ hitting the courts, but it is no surprise that it is the Prison Service apparently leaking the document and the figures.
Words, or at least ones that the Times wouldn’t put asterisks in, fail me.
The Social Housing Law Association has released a ‘Policy Statement’ on the need for legal aid reform. Briefly, they claim that far too many weak cases are brought against social landlords by legally aided tenants and that the subsequent litigation costs to social landlords are unfair as s.11 protection means the landlord cannot recoup their costs even if they ‘win’. They want a tougher merits test by the LSC and, as a sweetner, suggest compensating by lifting the means test limit.
How they support this allegation about ‘weak cases’ being brought willy-nilly, apart from extreme hypotheticals, is by an attempt at statistics. This is what they say:
One way of gauging the extent of the problem is to consider the number of reported cases that are brought by tenants with legal aid. Although reported cases do not record whether the tenant of a social landlord had the benefit of legal aid s/he will invariably have had legal aid unless appearing in person. Of cases reported in the 2005 Housing Law Reports, 44 of them involved social landlords. Tenants initiated 80% of them yet won only 23%. This figure suggests that the merits threshold of reasonable prospects is not being adequately enforced. Moreover social landlords initiated only 20% of them yet won 77% and this figure suggests that social landlords impose a much higher merits threshold on themselves.
In a spirit of disinterested inquiry, I thought I’d see just how many ways this exercise is unrepresentative and useless for all practical evaluative purposes. Where to start…
The selection is from reported cases. These are, by definition, unusual and unrepresentative. They are reported either because they are a higher court decision, appeal decision or because an unusual point of law or potential precedent decision is involved. They are, therefore, by definition, likely to involve a high proportion of difficult cases. Only one year of Housing Law Reports, 2005, is analysed, making no allowance for a potentially exceptional year.
I’ll leave alone the assertion that the tenants will ‘invariably’ be legally aided. It is an unsubstantiated assertion, but I’d be willing to stipulate that a very high proportion will have been.
Of the reported cases, 44 involved social landlords. Out of how many? We aren’t told. Is this a large proportion? An isolated few? No idea.
Tenants ‘initiated’ 80% of the cases. What is meant by initiated? I simply don’t believe that the tenant was the Claimant in 80% (35.2 cases? At least get the numbers right). I can only surmise that applications and appeals by tenants in existing proceedings begun by the landlord, are included in this figure. These are not ‘tenant initiated’.
Tenants won ‘only 23%’ of the cases (23% of 44? 10.12 cases? or is it 23% of the 80%? We aren’t told but it looks like the former). It appears from earlier in the statement that the definition of ‘won or lost’ for the SHLA is solely a costs order:
The LSC is not currently able to say what percentage of its funded cases are won or lost (ie which side has to pay the other’s costs).
So anything with no order as to costs, costs reserved, or something like a stay of warrant application which can be successful for the tenant - warrant suspended - even if costs are given against them (quite common), will be taken as a loss by the tenant. In terms of social housing cases, for these and other reasons, a simple costs award is a wholly inadequate measure of ‘winning’. It is sadly without a trace of irony that the SHLA proposes the costs order test as a better replacement for the LSC’s test of ’substantive benefit’.
Social Landlords initiated ‘only 20%’ of the cases (8.8 cases?). This is dubious, for the reasons given above. Still, we are told they ‘won’ 77% (33.8 cases? or is it 77% of the 20%. We aren’t told). This supposedly illustrates that landlords have ‘a higher standard of merit’ in bringing cases. It does no such thing, of course. Unless the figure is 77% of the 20%, it says nothing about the level of success by the landlords in the cases they ‘initiated’, just their level of success overall. It would be entirely possible for the landlords to have lost all of the cases that they brought and still have a 77% success rate.
So, a bunch of meaningless and inaccurate figures, from which tendentious conclusions are reached. What makes it all the more annoying is that the members of the SHLA are the ones who actually could give clearer figures. The social landlords and their lawyers have the figures on cases against publicly funded tenants and their outcomes, after all.
So, to any SHLA members reading this, how about it? Some actual figures? It would be interesting. But you will need a better measure of success than a costs order, honestly.
By the way, the one hypothetical but supposedly typical example of a weak but funded case is the anti-social tenant who denies everything in the the face of considerable evidence. Such a case would very likely not satisfy the LSC funding conditions and funding would likely be withdrawn as soon as the LSC noted that there was no defence to substantiated events or convictions. How do I know? I have seen it happen, more than once. The client will have been advised of the low chance of success and the probable withdrawal of funding. If they persist in their instructions and by some miracle funding isn’t withdrawn, then it remains the legal aid lawyers’ duty to follow their client’s instructions, even if inwardly screaming.
Very very busy and very tired, I currently come home and just stare blankly at the demanding voracious maw of the blog monster-child. Being too shattered to come up with anything to stuff down its greedy gullet, I can only feel guilt at its piteous cries of abandonment. It’s like Eraserhead, honest.
Which is one way to say that I may not be posting for a while, depending. But I will at some point soon-ish, hand on heart.
Sorry for another Times story reference, but I felt myself slipping into bewilderment with this story. Third party financing for bringing a case, OK. But it is then denied that there is any resemblance to encouraging personal litigation because:
Helping one company to sue another and possibly profiting from it is simply not the same thing as helping the victim of a car accident to sue the driver at fault. One is a personal dispute that may have involved tangible human suffering; the other involves a business managing commercial risk.
Eh? Colour me stupid but what, precisely, is the difference? “I fund you to bring a case and take a cut of your winnings” is strictly disallowed in personal claims, but should be allowed in business claims because…? Apparently it is ’simply not the same thing’, although both (hopefully) end in damages.
The rest of the article attempts a comparison with ‘forward contract’ arrangements, which strikes me as simply bollocks. Third party funding is not about minimising risk - because not taking legal action in the first place is about minimising risk.
Let us be honest - third party funding is exactly like ‘no win no fee’, it is about assessment of risk and according returns on investment. The only difference is that third party funding takes its rewards from the winner, where a CFA takes it from the loser. Frankly this article smells of special pleading and obfuscation. But what do I know, I’m not a commercial lawyer. I’m sure commercial lawyers will love third party funding.
A very long, frantic and difficult day, without any lunch, but successful in a way that means the last week and a half of intense busyness was, in retrospect, worth it. I can’t give details, not only for reasons of anonymity, but because matters aren’t yet signed and sealed.
But can I just say - Good Result.
Oh and to my friend the opponent, don’t mess us around for over a year again, because it costs.
I might be able to catch up with a few posts now, depending.
I’m flat out at the moment. Even my usual posting windows of a Saturday or Sunday have seen me either too tired or working to manage a post. So all I can manage is to point to two cases for Housing people’s attention, to which I will return when I have time.
In the Admin Court
Gilboy, R (on the application of) v Liverpool City Council & Anor [2007] EWHC 2335 (Admin)
Article 6 Human Rights and demoted tenancy possession decision reviews.
In the Court of Appeal
Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000
Overcrowding, homelessness and Part VII applications.
Mr Justice Munby has issued a stern statement on the use and abuse of ex-parte injunction applications to the Administrative Court in R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin).
Covering failure to use the Pre-Action Protocol, non-disclosure of material evidence, unexplained delay and requests for unreasonable periods of notice for application for discharge (48 hours, in this case) in draft Orders, the Judgment marks the Admin Court getting distinctly annoyed at what are scathingly described as ‘prevailing professional approaches’ in both the Family and Administrative Courts.
‘It seems very pretty,’ she said when she had finished it, `but it’s RATHER hard to understand!’ (You see she didn’t like to confess, ever to herself, that she couldn’t make it out at all.) `Somehow it seems to fill my head with ideas — only I don’t exactly know what they are! However, SOMEBODY killed SOMETHING: that’s clear, at any rate — ‘
There was a good, if unsurprisingly doom-laden article in the current Gazette on the post first of October introduction of fixed fees in some areas of Civil Legal Aid. What is confirmed is the strange looking glass world we are entering in pursuit of the new order and, as also reported in the same issue, savings of {L-} 300 million in the Legal Aid budget by 2010. I don’t want to rehearse the contents of article, but some things bearing further musing on.
The Demise of the Specialist
‘Crawling at your feet,’ said the Gnat (Alice drew her feet back in some alarm), ‘you may observe a Bread-and-Butterfly. Its wings are thin slices of Bread-and-butter, its body is a crust, and its head is a lump of sugar’.
‘And what does IT live on?’
‘Weak tea with cream in it.’
A new difficulty came into Alice’s head. `Supposing it couldn’t find any?’ she suggested.
‘Then it would die, of course.’
It has long been clear that the LSC’s vision is of large ‘all-in’ suppliers, covering the range of advice areas, so that clients with multiple issues - as many have - can have them addressed all at once. This is not a bad idea, although quite how it fits with the promised open competition is deeply unclear, as that is one hell of an entry threshold. But the implementation of the transition is strange.
For instance, my firm largely although far from exclusively operates on a specialist level, with referrals from local advice agencies on difficult matters or cases in which heading to court is the only option. We also have an informal referral procedure back to those agencies. We are far from alone in doing this. It makes sense, where there are capable advice agencies, to work in this way. There is way more than enough specialist work to keep us overworked. And we are, though I say it myself, a highly skilled team.
However, for housing, the new provisions require every provider to take on ‘a range’ of matter starts under the fixed fee Legal help (£171), with only a small proportion heading on to Certificate (where fixed fees don’t _yet_ apply). This means that we will have to spend a considerably increased amount of time on ’simple’ matters. This costs us for two reasons: because £171 is ludicrously unrealistic for dealing with anything that isn’t instantly dealt with at initial interview, and given that the usual client has little or no documentation, it rarely is; and because the additional time spent on dealing with funding documents and client care for even a matter finished in half an hour.
Presumably, for the LSC, it means that we are in ‘competition’ with the advice centres, and other firms, for the unproblematic, in-and-out, advice work that we currently don’t do much of. Except that we aren’t, because there is absolutely no shortage of people needing that kind of advice, at least in our area.
So, the effect is to trade a moderate increase in capacity for minor or relatively straightforward advice matters for a reduced capacity for complex, specialist cases. As the LSC’s claimed desire is for an increase in both the acts of advice and the effectiveness of advice, this seems beyond odd. Many people will be denied the specialist representation that they need, not because of a lack of specialist advisors (although that may well come to pass) but because the specialists are restricted in the deployment of their ability.
One Contract per area
‘Not you!’ Tweedledee retorted contemptuously. ‘You’d be nowhere. Why, you’re only a sort of thing in his dream!’
‘If that there King was to wake,’ added Tweedledum, ‘you’d go out — bang! — just like a candle!’
Now we are up to eight canvassed CLACs, Hull being the latest. It is interesting, to say the least, that we don’t know whether independent providers will still receive a franchise in areas where a CLAC is in operation. It seems doubtful, as one contract per area seems to be the aim. Again, how this plays into a competitive future is unclear. A monopoly provider, whether dubiously funded by and at the mercy of the local authority or not, can hardly face a creditable challenge from a newcomer. Who would be mad enough to attempt to undercut a local authority subsidised, paralegal staffed basic advice factory in any case? It is, I think, fairly clear that the desired future is not competition but a sole local provider which is, in effect, a creature of the LSC.
Diversification
The shop seemed to be full of all manner of curious things — but the oddest part of it all was, that whenever she looked hard at any shelf, to make out exactly what it had on it, that particular shelf was always quite empty: though the others round it were crowded as full as they could hold.
Looking for other income streams? Training - AKA poacher turned gamekeeper - comes to mind. But get in quick, this is likely to be a crowded market before long. Maybe act for a Social landlord or two or three - but at what point does this cut too much of your public client base off through conflict of interest? As a first step to going wholly private client? Why not. So the LSC’s approach to building a strong legal aid provision is to get the specialist skilled providers to act for the opposition.
Triage
However, this was anything but a regular bee: in fact it was an elephant — as Alice soon found out, though the idea quite took her breath away at first.
If you want to expand, and maybe be a contender for the sole regional/area provider, there is one clear route. Yes, you need to take over other firms to give the ‘all-round’ provision, but you also need to develop a large frontline staff to do a quick turnover of the ’simple acts of advice’. In a glorious euphemism, this is referred to as ‘generalist advice’ by Howells in Sheffield. It actually means basically trained, cheap paralegals. The trouble with basically trained, cheap paralegals is that they don’t spot when a real issue or potential case presents itself if it is at all out of the ordinary. (No offence to basically trained, cheap paralegals - it is a training and supervision issue). It is a little like having Accident and Emergency triage done by the porters and receptionists, not trained paramedics and nurses.
The economics of a paralegal based Legal Help factory do still, just about, make sense. But this is not the quality provision the LSC is allegedly pledged to sustain.
Efficiency, we keep being told, doesn’t mean a drop in quality. The trouble is that the project here isn’t about efficiency per se, but about a centrally driven model of practice, imposed regardless of carefully nurtured local arrangements of distribution of effort, access to advice, whether general or specialist, and efficiencies of delivery.
`A slow sort of country!’ said the Queen. `Now, HERE, you see, it takes all the running YOU can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!’
The Advice Centres, our current referrers, will be amongst the first ones to go under. One local advice centre has been informed that under the new funding arrangement, they will need to take on twelve times as many cases. Yes, twelve. Ironically, it was Advice Centres’ ‘cheap’ rate of advice that enabled the LSC to say the the new fixed rate is higher than ‘half’ of service deliverers charge. Advice Centres, in my experience, had never properly figured out what their costs were. They didn’t have to and it simply wasn’t in their culture. The imagined charge rate of those who didn’t carefully tot up billable hours is being used as a measure of efficiency for the rest of us, while the supposed models of efficiency are facing absolute crisis.
As the last looking glass moment, my firm, which tended to cost the LSC relatively little (being as we tended to do Claims/Counterclaims, Judicial Reviews, County Court Appeals etc. where costs can be and usually are successfully pursued against the opponent), is now likely to cost the LSC significantly more, despite the significant slash in our fixed fee Legal Help rates. Quite how this is an efficient use of those precious Legal Aid funds is beyond me. But…
One thing was certain, that the WHITE kitten had had nothing to do with it: — it was the black kitten’s fault entirely.
A strong argument for not pursuing a case as a litigant in person can be found in this case. That said, hats off to the applicant for at least getting a Judicial Review hearing in person. Not least after turning up two hours late.
There is an indication that the applicant was represented at some point in the process, but it appears that she abandoned representation in order to maintain “I didn’t do it”, despite the neighbours’ statements, the Environmental Health Officer’s statement, the Noise Abatement Order, the Magistrates’ Court conviction for breach of that order, the Crown Court conviction on appeal, and the findings of the review panel meetings that the applicant failed to attend. So, she faces a mandatory possession order on her introductory tenancy.
Who says the litigant in person isn’t given a fair chance in the legal system? It looks to me like the civil courts at various levels have bent over backwards to ensure that this LiP had every chance, and in the end even took the excuse of a left-over funding certificate, (which should technically have been discharged long before, and possibly was), to avoid landing costs on the applicant.
It has been a long, frantic week, preparing for a trial. Naturally, the trial was adjourned at the very last minute for lack of free court/Judge/time. Not necessarily a bad thing, as it gives us some time to convince the client that she really, really, really doesn’t want her day in court. She is currently certain that, if only the Judge hears her, the Court will not only award many thousands in aggravated and exemplary damages, but quite probably demand that the local authority chief executive is imprisoned.
None of this is remotely likely, and the client has been repeatedly told so, but she has been obsessed with her case for so long that I don’t think it has sunk in at all. Even assuming that we can get the current settlement offer improved a bit, it is going to be a nightmare getting the client to agree to it, but she will have to. Counsel concurred with our view, so there won’t be funding to continue. So, although we are closing to pulling off a definite good result with a massive improvement in the client’s position from when she came to us, she will not be at all happy and will probably complain.
It has all left me tired and rather dispirited, perfect for the long slog into the shortening autumn days.
Dear Minister for Justice,
I note that in your address to the Society of Labour Lawyers you asked for the help of the legal profession in finding out why England and Wales spend more on legal aid than ‘any other nation’.
I am somewhat surprised that you haven’t got civil servants, advisory groups, commons committees and professional bodies who can explain this to you. I thought the Committee on Constitutional Affairs and the Law Society had tried to give explanations and suggestions, amongst many others. But I am delighted that you seek our views and trust that you will consider the following.
The increase in the legal aid budget that you give is apparently not adjusted for inflation. The statistics office won’t let me go back beyond 1987, but since 1987, there was about 100% inflation to 2005, and the inflation rate was, on average, quite high between 1980 and 1987. So let us be generous and say another 40%. So the equivalent legal aid budget for 1980 would be £916 million.
But this is still a sizeable increase, of course. The LSC, the Law Society, The Committee for Constitutional Affairs and others all point out that the increase has been driven by high cost criminal cases and the family sector, although uniquely, the LSC refuse to act on this information.
Now ask yourself why this increase? Might the 40 Acts of Parliament on Criminal Justice and the thousand odd of new offences since 1997 have anything to do with it? Might the record prison population be somehow linked to it? Or perhaps the introduction of new sentence structures while failing to ensure that the necessary support services are in place? You know that tends to mean expensive appeals, particularly when the Government won’t actually let any judgment go unappealed. That’s a fair few tens (or hundreds) of millions down the drain for starters.
Or in the civil sector, might the increase in social services activity, and its underfunded support services (do you see a trend?) bring about an increase in Family cases, mostly in long drawn out child care cases?
You see, Jack, if I can call you Jack. (I feel I can, since one of your jogging bodyguards once stood on my foot as I approached Waterloo Bridge, and it is hard to be formal once you have seen someone in a sweaty vest, even if accompanied by two glowing close protection officers in shiny shorts.) It isn’t just legal aid lawyers that drive up legal aid costs. In fact, I would go so far as to say it isn’t legal aid lawyers driving up legal aid costs, full stop. As is evidenced, Jack, in the fact that you are wrong to suggest that the:
“astonishing” increase in the cost of legal aid had also spurred a rise in the numbers of lawyers and their incomes.
From 1980? Maybe in numbers - although not income - adjusted for inflation. But, I’m sure that, being Minister for Justice, you have noticed that the number of legal aid lawyers has been falling dramatically over the last few years. Oh, sorry. hadn’t anybody told you? And the reason why? Because it is very hard to make a decent living off a legal aid practice, perhaps.
And I have to say, Jack, I am sad to see you deploying the old resort of the desperate hack, the irrelevant comparison, when you said:
it could not be right that in England and Wales £34 was spent per head on legal aid, compared with £10 in New Zealand, £7 in the Irish Republic, £4 in Germany, £3 in France and £1 in Sweden.
Of the five comparators, three have completely different legal systems (and hardly any legal aid worth speaking of), two have vaguely similar systems but much smaller populations, far fewer offenders, far fewer offences per head of population, less legal redress against the state or other private bodies, and, as far as I can tell, desperate and embattled ‘public’ lawyers.
So, one reason our legal aid system costs more is that it is (still despite everything) better. For one of the pillars of the welfare state, (you remember Jack, like Education and the NHS), the aim should surely be to be quality for all.
I hope this has been of some help, Minister, because whatever ‘advice’ you are receiving appears to be, shall we say, a bit lacking in detail, honesty and that vision thing.
Oh and as someone just about to become a solicitor, I would like a legal aid sector to work in. Thank you.
Yours sincerely
Nearly Legal
I was, to put it demotically, gobsmacked by the content of a ‘warning’ from the Equal Opportunities Commission that the Employment Tribunal system is creaking under the weight of claims brought by those naughty ‘no win no fee’ solicitors. When they have exhausted the public sector, says Chair Jenny Watson, they will turn on the private sector.
And now the truly jaw dropping part:
The majority of cases involve local authorities, but the commission says the private sector is just as vulnerable to claims.
It warns that “no win, no fee” lawyers will continue to fuel the number of women challenging employers. The commission suggests a new system in which employers must agree to check their pay system for discrimination to ensure it is fair.
In return they would get breathing space - a period of two to three years when they would not have to face any individual pay claims. The Commission’s chairwoman, Jenny Watson, said: “In return for accepting a legal obligation to check their pay systems are free from discrimination and taking robust steps to put their house in order should they find they have a problem, we think employers should have some breathing space from individual claims for a limited period. “This approach - what we’re calling a ‘protected period for transitional arrangements’ - is the kind of modern approach that’s needed.”
So, the system is collapsing under the weight of equal pay claims. This is not because the public and private sector persist in unlawful pay discrimination, it is because of the ravening hordes of no win no fee lawyers bringing cases. That these cases are merited and the claims largely successful is beside the point.
Rather than improve or enlarge the system so that unlawful pay discrimination can be adressed, the answer is to offer firms a moratorium on claims while they have a bit of a think about maybe not indulging in pay discrimination. The implicit threat being that if they don’t have a bit of think, the ravening hordes will be waiting, clawing at the door for when the moratorium period ends.
And this, astonishingly, from the Equal Opportunities Commission itself. The EOC’s website boasts the motto:
The Equal Opportunities Commission is working to eliminate sex discrimination in Britain today. If women and men had equal chances in life, things would be different. We’re working on it…
Apparently not by enforcing the law.
Whether this approach persists when the EOC vanishes into the Blob-like CEHR, we will have to wait and see.
I am indebted to Victorian Maiden (QC) at Ruthie’s Law for the news that Bruce Hyman is to be sentenced tomorrow, 19 September. He may make history as the first barrister for 800 years to be sent to prison for perverting the course of justice.
Hyman’s erstwhile chambers, Doughty Street, are preserving a wall of silence and it is only google traces that now identify him with the, err, doughty defenders of human rights. I share VM’s view that Doughty Street need to at the very least acknowledge that this has happened. On this occasion at least, silence is not the dignified option.
But VM’s views on Chambers espousing a position, and with it limiting who they act for, gave me something to think about.
Firstly, in terms of my own situation. Granted, solicitors don’t have the same ‘act for all-comers’ principle, but I am now involved in some acting for landlord cases where so far I have always been on the tenant side. In terms of practice and indeed law, this has been interesting. And, as a frankly pretty damn good tenant-side lawyer, poacher turned gamekeeper comes easily.
However, I came into law intending to be a legal aid practitioner and so it remains, possibly foolishly. Am I wrong to limit my potential future clients in this way? Does it impede my practice or make me a worse solicitor (to be)? Does it interfere with a duty to the Court? I think the answer is no on all counts, except in terms of money coming in. The crucial question is does this affect my duty to the clients? Would I, for instance, subjugate the client’s interests to principle or a political point? And of course, the answer is no, absolutely not.
Does this make me a better person, or rather make me think that I am a better person? No. Only a pompous idiot or first year student would equate trying to act in accord with their political or social views with their own personal virtue. A secular protestantism, which is never pretty.
For the Bar, some things are different. As VM puts it ‘barristers should act for all comers’. This is indeed an honourable principle - barristers serve the law above all, albeit in the interests of the client of the moment. Doughty Street’s avowed commitment to ‘human rights and civil liberties‘, for VM at least, cuts against the all comers principle, presumably by making them incapable of arguing cases against human rights and civil liberties with any appearance of conviction.
On the one hand, I can certainly appreciate the argument. Perhaps even more so than with a solicitor, a barrister’s client needs to know that the advice and representation that they receive will be with regard to their interest from an independent view of the law. The all-comers principle ensures the independence of the barrister.
On the other hand, despite VM’s stout defence of principle, the practice is frequently at odds with it. We all know about criminal barristers who don’t take legal aid cases, or commercial barristers who won’t get out of bed for a brief fee under five figures, or Counsel who only act for local authorities, never the citizen. Acting for all comers often means acting for all comers who can afford the fee. Just try getting a taxi to go south of the river after eleven pm to see where the ‘cab rank’ gets you.
I take it as read that such practice would also attract VM’s ire, as the only distinction that I can see is between an overt (perhaps smug) profession of approach and a more covert (certainly hypocritical and also smug) selection of clients.
But such sniping aside, I am, quite genuinely, not sure about the continuing importance of the all-comers principle. I fully understand the value of the principle, but what if it was acknowledged to have pretty much gone? Does a barrister who, in covert practice or in overt pursuit of professed values, tends to act for certain classes of client have a lesser knowledge of law, or expertise in advocacy? I see no reason why that should be the case. I also don’t see any issue for the barrister’s independence that hasn’t already been put in play by Conditional Fee Agreements, for example. I am undecided and open to argument on the point.
As an old, Chablis pickled lefty, though, I would have to agree that there is nothing so annoying as a sanctimonious liberal.
The latest figures, up to Quarter 2 2007 are available on the Ministry of Justice site, link to the PDF.
The figures show quite a drop in the Q2 figures for non-accelerated possession claims issued (including claims by Councils and Housing Associations) compared to Q2 2006:
Q2 2006 32,465
Q2 2007 28,661
The figures for possession orders made also show a drop, although smaller both absolutely and proportionately:
Q2 2006 21,807
Q2 2007 19,542
This may show the effect of the Rent Arrears Pre-Action Protocol. Hopefully compliance with the protocol means less need for claims to be issued and/or stops claims being issued merely as ‘enforcement’ for agreed arrears repayments, or to poke housing benefit into action. On the other hand, it may just be that the protocol has made issuing a claim trickier.
Certainly, we have been getting fewer inquiries from social housing tenants facing arrears possession claims. Which is slightly annoying, as for various reasons, an arrears possession claim with a decent disrepair counter-claim would be very useful at the moment.
Meanwhile, private sector s.21 accelerated possession procedure claims and possession orders are rising. Claims issued:
Q2 2006 5,800
Q2 2007 6,493
Possession orders made:
Q2 2006 4,203
Q2 2007 4,628
Notably, for a no fault, mandatory order process, a lot of claims are unsuccessful (an increasing number 06-07). One can only presume that a lot of private landlords are making a horlicks of the process, as I doubt many s.21 claims are settled or withdrawn.
A few more details on R(Southwark Law Centre) v Legal Services Commission [2007] EWHC 1715 (Admin), which I mentioned a few days ago.
First, it is worth noting that Mr Justice Collins effectively said that ‘net rent’ for the purposes of the LSC entitlement assessment included any payments the occupier was obliged to make to be able to live in their home. This includes instalments towards arrears, e.g. under a possession order or agreed between landlord and tenant. This means that the assessment is now more ‘generous’ than the one most people assumed to be the case before the LSC started the ‘rent actually paid’ nonsense. We then generally took the figure to be the set rent figure alone.
Second, the background to one of the two joined judicial reviews, R (Dennis) v LSC, casts an unholy light on the sheer untrammelled idiocy that passes for LSC decision-making these days.
Ms Dennis faced an eviction and funding was refused by the LSC under the ‘rent paid’ assessment. Ms Dennis, via her solicitors Traymans, wanted to apply for permission for JR of this decision and sent a funding application to the LSC.
The LSC refused funding on the basis that the application for judicial review ‘was without merit’! Presumably because it knew it was right on the issue.
Traymans pursued the application for permission pro bono and funding was only actually granted once Collins J had given permission to apply for JR. As it turned out (or was obvious from the start) the application was so ‘without merit’ that not only was permission granted, but the LSC lost the JR itself. In fact the LSC lost so badly that permission to appeal was only given on the basis that the costs orders against the LSC would stand no matter what, and the LSC must pay the costs of the appeal for one set of the applicants’ solicitors.
Quis custodiet ipsos custodes? Should this increasingly demented body stand in judgement over the funding of challenges to the lawfulness of its own decisions?
_____________________________________
Brief to Counsel to the tune of Noel Coward’s
Don’t put your daughter on the stage
_____________________________________
Don’t put our client on the stand Mr Worthington,
Don’t put our client on the stand.
The possession claim is issued
The situation’s rough
And admitting the debt
And illegal sub-let
Really isn’t quite enough
He has no sense
That to neighbours a respect is due
And don’t you think his manner too
Uncertain to be planned?
We repeat Mr Worthington,
And plead, Mr Worthington
Don’t put our client on the stand
Re your advice, sage Mr Worthington
Of Wednesday the 23rd
Although our client may be
Keen on his day in court
We repeat our thought
The client should be fought
For him to speak
Wise Mr Worthington
Is on the face of it absurd
His personality
Is not in reality
Repentant enough
Respectful enough
For cross-exam to be sought
Don’t put our client on the stand Mr Worthington
Don’t put our client on the stand
Though he said at the pre-trial conference
The rent arrears would be cut
We’re afraid on the whole
His spell on parole
Has meant they’ve just gone up
He’s a big man and though he’s rarely violent
Hitting the usher was a precedent
Sure to see him damned
No more buts Mr Worthington
Nuts Mr Worthington
Don’t put our client on the stand.
Should Counsel wish to discuss the matter further, he should contact Nearly Legal of Instructing Solicitors, who is dandling a dry Martini and wearing a cravat.
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.
1. MI5 has been extremely busy lately inserting things into various people. What these things were, I didn’t enquire.
2. At least some parts of the Professional Skills Course, as undertaken by all trainees, are utterly pointless. Or, to put it another way, 100% of the PSC components with which I have so far been acquainted are utterly pointless. A nice little earner for the deliverers, though.
3. Despite previous mutterings and defamatory restaurant reviews, the defence of fair comment is alive and well, at least on appeal (Associated Newspapers -v- Burstein [2007] EWCA Civ 600). One can now safely be rude about bad operas, even if bad food and service require a cautious response. Certa.ie makes reasonable comment on fair comment.
4. Now that Goldsmith is going (what a surprise), there are mutterings over separating prosecutions and the CPS off from the purview of the Attorney General. While this would make a certain degree of sense, at least in reducing the appearance of political leanings in deciding on prosecutions, any change to the role will need to be very carefully considered.
And that is it. The week was otherwise far too full of filing to permit of learning.