More than a quarter of firms expect to walk away from legal aid work in the next five years, a report slamming the Legal Services Commission’s poor administration has revealed. The report by public spending watchdog the National Audit Office (NAO) showed that one in six firms made no profit from publicly funded criminal defence work, and 14% made only 1-5% profit. NAO head Amyas Morse said the LSC must make it a ‘priority’ to ensure that ‘it is paying a fair price for legal aid services that both sustains a competitive supplier base and provides value for money’. In October the NAO qualified the LSC’s accounts for the legal aid fund for 2008/09 because it found that the commission had overpaid solicitors on criminal and civil cases by an estimated £25m. Legal aid minister Lord Bach has asked the LSC to implement an action plan to recover the overpayments from solicitors. A survey of 369 firms published in the report revealed that only half expected to be doing criminal legal aid in the next five years, with 28% saying they were unlikely to be doing so due to its unprofitability, the prospect of tendering or retirement. Law Society legal aid manager Richard Miller said: ‘We are deeply concerned at the catastrophic picture this paints of the economically precarious position of the majority of the solicitors providing legal aid in criminal defence work. ‘This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system. Many are not even earning any income from the work they do. This is a picture of a supplier base on the point of crumbling into insolvency.’ LSC chief executive Carolyn Regan said work was already under way to implement the NAO’s proposals, which would be discussed with the Committee of Public Accounts next week.
It is astonishing that the government has not publicised the Ministry of Justice research into public attitudes to legal services (see  Gazette, 4 March, 1) – after ministers specifically commissioned it so they had a baseline from which to measure the impact of the reforms. The research highlights very strong satisfaction with solicitors and other lawyers. These very high levels of client satisfaction reflect the high professional and ethical standards of the solicitors’ profession. This reinforces previous research, which has consistently found clients are happy with the service they receive from their solicitor. A clear majority of respondents surveyed also felt they were given adequate information about fees and charges, how long the matter would take, how they would be kept updated and who they should contact for more information. It’s a mystery why the government chose to bury this good news. Desmond Hudson, Chief executive, Law Society
Downing Street has expressed ‘full confidence’ in justice minister Jonathan Djanogly, who is in charge of legal aid, following claims in the Telegraphtoday that the minister hired private detectives to find out what his colleagues thought of him. The newspaper reported that Djanogly paid a private detective agency £5,000 to make ‘discreet inquiries’ about how he was viewed. The agency’s report is alleged to have concluded that Djanogly was seen as a poor politician by aids in his local party, and had been damaged by claims over his expenses. Djanogly was the subject of press reports that he had claimed £13,000 for a cleaner who also acted as an au pair. A Downing Street spokesman said this afternoon that Djanogly had the ‘full confidence’ of Prime Minister David Cameron. He said Cameron ‘judges the minister on how he performs as a minister’. In a statement, Djanogly said: ‘Following a series of malicious allegations made against me in newspapers last year, I felt I had to act to find out who was spreading these untrue stories. ‘I instructed a firm of private investigators to try to find out the source of these stories because I was extremely upset that my private family life had been invaded.’ He added: ‘I am sorry if some people judge that I made a mistake. With hindsight I can see that I may have overreacted, but I was being subjected to very malicious, anonymous attacks on my family’. Djanolgy said the report should have been confidential, and he paid for it himself.
The public’s ignorance of the law is one of the major obstacles that is preventing people from gaining access to justice through personal injury claims, and most believe that making a claim would be ‘working the system’, according to a report by National Accident Helpline based on a poll of 1,600 people. The report, The Scale of Injustice: How the British Public is paying the price for the compensation culture myth, found that only 6% of respondents were ‘confident’ of their legal rights. Four-fifths perceived there to be ‘significant obstacles’ to seeking redress for a personal injury, and 57% identified a social stigma in making a claim. Some 60% said they would feel ‘guilty’ for making a claim against their employer. The findings are published ahead of a government review of health and safety laws by former minister Lord Young. Samantha Porteous, CEO of National Accident Helpline, said: ‘NAH is injecting some balance in to what has so far been a very one-sided public debate fuelled by the insurance industry and some very inaccurate media reports.’ She added: ‘Our research shows that many consumers are reluctant to approach solicitors, and that barriers to justice are significant.’ When broken down by type of poll respondent, the research showed that these barriers were more prevalent among lower socio-economic groups. Porteous also pointed out that employer liability claims had fallen 69% in ten years – further evidence that the UK’s compensation culture is not on the rise, and does not represent an unacceptable burden on employers.
Phillip Oldcorn, director, First Title, London EC4 Your article on the launch of a conveyancing quality scheme is excellent news, not just for conveyancing clients but also for insurers of conveyancing risk. The introduction of the conveyancing quality scheme (CQS) represents a huge opportunity for all law firms. There are several great initiatives in the market now, and each gives solicitors the chance to own the agenda in respect of the pace and scale of change in the conveyancing market. Firms that draw on the complementary benefits of CQS, other best-practice initiatives, such as the Lexcel practice management standard, indemnity products and secure online communication portals, will effectively be offering their consumer and lender clients the ‘gold standard’ of conveyancing practice. I suspect that the vast majority of consumers and lenders receiving the best legal advice backed by peace-of-mind insurance to protect them against the ‘unknown unknowns’ in this way, would be more than satisfied with such a compelling proposition. And if this is what the brave new world of conveyancing looks like, there will surely be little room for complaint and considerable cause for celebration. However, the market can ill afford for that future to be too distant.
Just in, this match report from a gruelling international rugby encounter between the Cardiff Lawyers XV and their Parisian counterparts, Rugby Club du Palais de Justice de Paris. Mark Rostron, partner at Hunt & Morgan, informs Obiter that it was a physical encounter with hard hits going in from both sides, though thankfully the French opted for passive scrums (something to do with their insurance). Indeed, the referee even saw fit to castigate Cardiff Lawyers’ entire back row for their exuberance in the first half. But the second half saw a combination of fatigue and lack of replacements leading to holes opening up in Cardiff Lawyers’ defence, duly exploited by their Gallic rivals, with the final whistle seeing the Parisians victorious. The French lawyers will visit Cardiff next year for a return match to coincide with the Wales-France international (contact firstname.lastname@example.org). As they say across the channel, la vengeance est un plat qui se mange froid.
Follow Rachel on Twitter In his most recent lecture on the implementation aspects of his Final Report, Lord Justice Jackson turned the spotlight on the costs associated with expert witnesses. Particularly interesting were his comments in relation to the ‘concurrent evidence procedure’, or ‘hot-tubbing’, as it is wryly termed by lawyers. Inspired by an Australian technique, hot-tubbing involves a radical departure from the current norm of experts examined in the witness box by barristers, with opposing evidence often not heard until weeks later. By contrast, in the hot-tub, experts give their evidence together in the form of a discussion chaired by the judge. Barristers can ask questions as well as the judge, but crucially, experts can also challenge one another on their views by asking direct questions. Whereas under the current system, an expert may be able to gloss over or omit information that does not support their view – in the knowledge that, ultimately, the expert knows more about their specialist field than the barrister questioning them – that will become much more difficult in the new discussion forum. Experts will also need to be fully familiar with the subject matter, which will become much more important than how good they are at performing in the witness box. The expert who does not fully understand the subject will have nowhere to hide, and it will be far harder to present opinion as fact. Jackson notes that a pilot of this concurrent evidence technique in Manchester – originally in the Mercantile Court and Technology and Construction Court, now extended to the Manchester Chancery Court – has suggested that it is quicker, better for experts, cheaper in terms of trial time and cost, and makes it easier for judges to understand complex technical evidence. It is understood to be broadly popular with lawyers, clients and experts themselves. No surprise, then, that Jackson suggests that a practice note could be in place by next October to allow civil judges to order experts into the hot-tub; a development that could potentially have a far-reaching impact on trial strategy and the use of expert evidence. But, as Jackson himself acknowledges, there is one factor that could put the brakes on this new advance: judicial resources. The Court of Appeal judge points out that concurrent evidence ‘should not be undertaken unless the judge has time to master the expert reports properly’. In the hot-tub, there will be much more focus on the judge himself, and their own understanding of the points in dispute. A judge who has thoroughly familiarised himself with the deeply technical evidence at hand will be able to greatly assist the progress of the case, by quickly getting to the bottom of the key aspects on which there is disagreement. But a judge who has not undertaken such a detailed examination – possibly due to lack of time – may well be less inclined to use the new approach, in which they will be expected to take such a pro-active role. The hot-tub technique may be desired by parties, lawyers and experts, but ultimately its success will depend on the attitude, enthusiasm, and resources of those on the bench. Rachel Rothwell is a freelance journalist and editor of Litigation Funding
Justice secretary Ken Clarke (pictured) has insisted he will not allow courts to become ‘theatre’ despite allowing cameras inside for the first time. The government is planning to change the law to remove the ban on cameras in court, starting with the Court of Appeal and expanding to the Crown court in due course. But Clarke, speaking in the House of Commons this week, emphasized he will not allow filming of juries, victims and witnesses under any circumstances. He said: ‘The judge, when he gives a sentence or a judgment, is a public official performing a public function; his words can be quoted, he will be reported and there is no real reason why he should not be filmed. ‘The other people involved, I think, need to be protected because, otherwise the whole nature of the proceedings will be changed, some people will be intimidated and some people’s behaviour will be affected.’ Clarke said he will also allow broadcasting to be stopped if a defence lawyer is abusing privilege during mitigation. ‘Of course the lawyer is entitled to put forward mitigation for his client after the plea, but I strongly disapprove of any attempt for this to be used for people to make allegations against the victims.’
Civil liberties have few friends in government – only in opposition. Witness the coalition’s decision to hand police and intelligence agencies far-reaching new powers to monitor emails, phone calls and websites. ‘Big Brother WILL be watching you,’ booms today’s Independent. It all started so promisingly, too. Page 11 of the coalition agreement, struck in May 2010, stated: ‘The government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedom and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness.’ A just verdict on New Labour? Absolutely. Guilty as charged, m’lud. A progress report one year later, by the civil liberties group Big Brother Watch, showed that real progress was made in the early months of the new administration. ID cards were scrapped; steps were taken to remove the profiles of one million innocent people held on the national DNA database; the ContactPoint database of children’s details was dumped; and the criminal record check regime reformed. The same coalition agreement also promised: ‘We will end the storage of internet and email records without good reason.’ So what has changed? The technology has advanced apace, granted, but so far as to justify Britain adopting the same kind of surveillance as China and Iran? The reforms are promoted as combating terrorism. And there are still Islamist extremists out there in the ether, pledging eternal jihad. But in July it will be seven years since 7/7. The available evidence suggests the security services have done an excellent job in rooting out potential terrorists since then. It would be foolhardy to argue that the threat has been extinguished (and no journalist would offer such a hostage to fortune), but where is the evidence that the preventive powers already available are inadequate? Where – to quote the coalition document – are ‘good reasons’? It is an iron law of public life, of course, that the police and intelligence officers are programmed to seek whatever permissions they can from suggestible politicians (who rapidly become ‘house-trained’). It’s in their DNA, if you’ll pardon the irony. What ministers have failed to do over many years is to achieve the requisite balance between freedom and national security that is the hallmark of a properly functioning democracy. What’s in progress here is a terrifying continuum of ever-increasing state encroachment, the logical culmination of which is a security camera in every house. After all, if you’ve got nothing to hide, you’ve got nothing to fear. So far today, opposition to the proposals in parliament has been led by thwarted would-be Tory leader David Davis – presumably because Labour is so hopelessly compromised on the issue. Meanwhile, the Liberal Democrats, in whose own DNA one might expect to find ‘civil liberties’ encoded, are apparently meekly accepting of the plans. Who else is there: George Galloway? Some things are more important than petrol and pasties. Some democracy. Some liberty.
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