The Secret Barrister – Stories of the Law and How it’s Broken

Now I don’t usually do book reviews here. It’s not that sort of blog. But this isn’t the usual sort of book. As the title (above) says it tells you how the law is broken – not as in speeding or murder, but as in a system failing to work properly or, in some cases, at all.

Written by the well-known (and strictly anonymous) criminal barrister and blogger really  known on Twitter as @BarristerSecret (and whose blog is to be found here) it came out in March and has shot to the top places of the bestseller lists and stayed there for weeks.  And although I haven’t done any criminal law since shortly after coming to Coventry (in the days when I really was Coventry Man) I bought and read it. Many of you will have also done this, and the rest of you ought to buy and read it too, because it is important, and talks about things that matter.

He (or she) gives a view of the state of the criminal justice system in England & Wales today, as seen from the coal face. And it isn’t a pretty sight. The basic problem is gross underfunding for many years, with the result that there aren’t enough courts, or judges & staff, or people and resources in the CPS prosecution service, or the police, to provide an even half-decent system. And the payments to the independant lawyers concerned – the solicitors and barristers – are appallingly low, with the result that fewer and fewer lawyers will do the work, and those that are left don’t have the time and resources to investigate cases, or prepare for and attend the trials. And things will get worse as the cuts to the system continue to bite, and those that are left give up the struggle.

Now many of you may feel that you are just not going to come across the criminal justice system, so it really isn’t your problem. You aren’t criminals. But the book shows

  • how it is very easy to get caught up in some incident and then get picked as the perpetrator from, say, a dubious CCTV film, or by a dazed victim;
  • or to be accused of some historic abuse allegation, which the police feel they have to take all the way for political reasons;
  • and how many victims fail to get justice because an otherwise strong case against the perpetrator falls over because of administrative incompetence and overwork.

And it is, anyway, a poor society which allows those accused of crimes, and liable to long periods of imprisonment, or other penalties, to be convicted of things that they didn’t do, and against which they are unable to defend themselves.

There is lots more – and they put it far better than I ever can here.

The book is amusing, challenging, hard-hitting, perceptive, and a must for anybody interested in Britain today. Go out and get one!

Note The book The Secret Barrister – Stories of the Law and How it’s Broken – is published by Macmillan in hardback and is available via Amazon, or at the shops.

 

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The Risks of Do-it-Yourself – Barton v Wright Hassall

There are a lot of Litigants in Person (people acting for themselves) about these days. With the virtual abolition of civil Legal Aid and much more rigorous selection by No Win No Fee providers, a large number of people are more or less forced to act for themselves in many circumstances when this is far from ideal.

Predictably, they tend to make something of a mess of things from time to time, usually caused by lack of the technical knowledge needed for litigation, with a sketchy knowledge for the Civil Procedure Rules that govern the process, and little experience of how courts operate, and what they need to be told and how to do it. This has lead to calls in some circles for LiPs to be excused from complying with the CPR, provided they are not so far adrift that they cause serious prejudice to their opponents, or real inconvenience to the courts. In fact some people have been saying that the CPR should be interpreted this way already. Others say that the way forward is either to simplify the CPR for everybody, or to provide a simplified system that LiPs have to follow, leaving the detailed rules to those proceeding with professional representation.

Now, those on the front line in litigation will know that a combination of these views have been applied in practice by the District Judges who have to deal with the bulk of the LiPs from day to day. If you are appearing against a LiP then you will know that there is rarely much point in taking technical points about procedure against them – short service of documents, failure to include all the correspondence, vague allegations in the Statements of Case, or in the evidence in support. Most DJs will just raise their eyebrows and extend the time or whatever, and you won’t get anywhere unless they are miles out of line. You do better to fight things on the merits, when the fact that their case has not been properly argued or supported by evidence will count against them in the end. I have written about this before, here.

Now last week the Supreme Court gave judgment on a case which some commentators said would enshrine the new flexibility for LiPs in law. Others were more sceptical. So read on.

Barton v Wright Hassall [2018] UKSC 12 was a professional negligence claim by Mr Barton against his former solicitors, a well known local firm in Leamington Spa. Mr Barton had fallen out with the solicitors acting on his divorce and engaged Wright Hassall to sue them for negligence. Then he fell out with WH and wanted to sue them as well. He either couldn’t find a third firm to help him, or possibly thought that he could do better himself – either way, he issued the claim himself and in the summer of 2013 the time came for him to serve it.

Wright Hassall had instructed solicitors to act for them – Berrymans Lace Mawer – and they confirmed that they were authorised to accept service of proceedings for their clients, so all Mr Barton had to do was to stick the papers in the post, or deliver them by hand to their offices. However Mr Barton decided that, as he had left things to the last day for service, he would serve them by email, and sent the appropriate paperwork off to BLM on 24th June 2013. His email itself was fine, and he appears to have enclosed the right documents with it. However, he had missed a vital point, and so service was held to be invalid. This is that in order to validly serve by email the recipient has to confirm that they are prepared to accept service in that way. Just giving an email address in ordinary correepondence won’t do, they have to say they will accept service by email. PD 6A to r 6 CPR is specific:

Service by fax or other electronic means

4.1  Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –

(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –

(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and

(b) the fax number, e-mail address or other electronic identification to which it must be sent; and

(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –

(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;

(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or

(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.

4.2  Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

It all looks a bit dated now, although it was probably entirely relevant when it was introduced a number of years ago. BLM had given their email address, but hadn’t confirmed that they would accept formal service there, Mr Barton made no enquiries, and so he was all set up for failure. His email arrived, was acknowledged, but was not responded to until 4th July, by which time not only had the 4 months for service expires, but so had the limitation period of 6 years for his claim itself, so he couldn’t re-issue and serve properly. A lesson not to leave things so late.

The various courts all held that this was not good service. What is more, Mr Barton’s application for an order under r6.15 CPR, which allows the court to validate service in some circumstances, was refused. The rule provides:

Service of the claim form by an alternative method or at an alternative place

6.15

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service….

Unfortunately for Mr Barton, the District Judge, the Circuit Judge on appeal, the Court of Appeal and the Supreme Court all refused to approve service under para 6.15(2), although the SC was split 3:2 against him. Lord Sumption, giving the majority judgment said that:

  • The fact that the email actually brought the claim to BLM’s attantion was not enough. If it was, then any form of service would suffice, which was not the case.
  • Service of proceedings is important as it is the start of the timing for a lot of what follows, and stops limitation running.
  • Service by email could be a problem in case it took place without the solicitors being aware of it – for example by arriving at an address whose holder was away. Hence there are rules which ought to be followed.
  • There is no special treatment for LiPs in obeying the CPR. “Unless the rules are particularly inaccessible or obscure, it is reasonable to expect an LiP to familiarise himslef with the rules which apply to any step which he is about to take.”
  • These rules are neither inaccessible nor obscure. They are published on the internet and referred to in the instructions sent out by the court when they issued the claim. They are clear to read and if Mr Barton had read them (which he hadn’t) he would have easily understood what they said.
  • It is incorrect to say that BLM were “playing technical claims” with Mr Barton. They had not said that they would accept service by email. They were under no duty to advise him, contrary to their own clients’ interests, that he should re-serve or re-issue before limitation expired.
  • There was no reason to rescue the claim using r6.15, which would cause Wright Hassall considerable prejudice.
  • The Human Rights argument  – that this was a breach of Mr Barton’s rights to a fair trial under Art 6 – got nowhere. Rules on service and limitation periods are widespread and fair.

He did however urge the Rules Committee to look at redrafting the relevant rules in the light of developments since they were first drafted.

Lord Briggs and Lady Hale dissented, and would have allowed the appeal and validated service, on the grounds that the steps taken were effective to bring the service to the Defendants’ attention. But they repeated that there was no special treatment for litigants in person, other than the fact that they generally broke the rules by ignorance rather than as part of the tactics of a professional litigator.

So that is that. No special rules for LiPs for now, but perhaps a little bit more flexibility (depending on who is judging your case).

And finally it is perhaps ironic that if Mr Barton had put the documents in the post on that last day they would still be in time even if the Royal Mail took a week to deliver them. Because the rules on the time for service of a claim form, contained in r7.5 CPR provide:

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

And the step for service by post (or DX) is just the posting of the document, not its delivery.

More details in the usual places –  Civil Litigation Brief gives practical advice as well.

Does Carillion Ring any Bells?

I’m not going to cover the details of this topical case, because they are fast-moving, not entirely clear yet, and covered in more detail by specialists elsewhere. What matters more is that a distressingly small proportion of comentators, let alone ordinary business-owners, know very much about what happens when a business becomes insolvent, and, more to the point, goes bust.

I am going to look at a few hard truths.

The Background

The brief outline, for the sake of people reading this piece in years to come (if any) is that Carillion was the product of a merger between a number of well-known companies in the construction and facilities-management sector – part of Tarmac Construction, Mowlem, Alfred McAlpine, and part of John Laing, plus some businesses in Canada and elsewhere. It divided its activities between facilities management (eg maintenance of prisons, and railways), large constuction projects (eg hospitals and part of HS2) and mining and mineral extraction abroad. It was the second largest construction company in the UK.

After a number of apparently good years it issued a profits warning in July 2017 recording a downturn in its construction division of some £845m. The share price crashed from 192p to 45p by the end of August, resulting in the loss of 5 directors and frantic searches for refinancing or a buyer. These were scuppered at the end of September when it was revealed that the business had lost £1.15bn in the 6 months to 30th June 2017. Two further profit warnings were issued, and eventually all the options ran out and the company was placed into compulsory liquidation on 15th January 2018. The business owed some £900m, plus a £580m deficit in its pension fund.

Somewhat controvertially the Government, who had a high proportion of Carillion’s business, continued to award it contracts throughout this period, including the amazing award of a substantial share in the HS2 scheme a few days after the first profits warning.

The Outcome

The business apparently had assets worth just £29m when it closed. These would all be charged to its bankers, and although the head office in Wolverhampton may be worth something, the claims for payment on the various construction contracts are likely to be worth very little because of the counterclaims the employers are likely to raise arising out of the additional costs caused by the failure and various “defects in construction” which will come to light over the next few days or weeks.

The facilities management in the state sector – the prisons and the schools – will continue, initially funded by payments to the liquidators to cover the cost, and no doubt in due course the staff will be taken in-house by the clients, or the contracts will be re-let to other contractors, and the staff will, to the most part, be able to follow the work. There will be very little change, although the future cost will be higher because the cause of the failure was taking on contracts at unrealistically low prices in the first place.

The construction in the state sector – building the hospitals for instance – will also continue, after a bit of a hiccup. The hospital will need to be completed and the contract will have to be awarded to another contractor. This may take a bit of time, and will cost more (obviously) but there is every chance that the staff will be taken on by the new contractor, who will suddenly need just the number of workers who are working on the project when it failed, and although there will be some shaking out, and the replacement of key managers, things will continue. And hopefully some lessons will have been learned so that next time the contractor manages to finish the project intact.

The private sector work will be more difficult. Some facilities maintenance work will be taken in-house, with or without the workers, and the construction projects will continue, but after what could be a significant pause. There are likely to be more losses of employment, as new contractors bring in their own teams.

HS2 and the A14 road improvement projects are special cases: they are joint ventures between a number of contractors and they have guaranteed to take over the projects in the event of a failure such as this. Subject to their own financial stability, the survivors are likely to take over the existing staff and continue as before.

But there will be casualties – employees not taken over, pensioners and sub-contractors

The Victims

Although there has been a lot of fuss about them in the media, the employees have various sources of compensation. If they lose their jobs they will get statutary redundancy payments from the government, plus up to 8 weeks’ wages at up to £489/wk, and holiday pay, sick pay and notice pay. It may not be everything but it will be most of it, and few employees will be owed more than a few weeks at this point. And there is a good liklihood that they will be taken on again by whoever takes over the project.

Pensioners also have some protection from the Pension Protection Fund. Those receiving pensions will continue to do so at the same rates, although the rate of increase for future years will be restricted. Those who are below the scheme’s retirement age will get 90% of the pension that they would otherwise get, and subject to a cap (of some £38,500 odd for 2017). Again future rates of increase will be restricted.

It is sub-contractors, suppliers, and their employees, who will take most of the hit. Any company in Carillion’s position will have become very slow in paying their bills and the amounts that are owed will be considerable. I have heard talk that some were operating on payment terms of 120 days, or even 6 months, and for a small business this level of exposure is likely to be fatal. Even if they are taken on by the new contractors they won’t be paid for the work that they have done up until 15th January, and few businesses can afford a hole of this magnitude in their cashflow. They are unlikely to have insurance cover, and factoring won’t save them because the factor will just deduct payments from future invoices until they have been reimbursed.

If you are say an electrical contractor, if you fail then not only do your employees lose their jobs, but your suppliers, your landlords, your contractors and even (God forbid) your lawyers and accountants will miss out. To say nothing of any guarantees put up by directors or shareholders. It will be very grim.

And finally, there are the banks. There is something in the region of £900m owed to RBS, Santander, Barclays and HSBC and a few others. They will get very little of this back, and, although they won’t get much sympathy, that is money that they can’t lend to the rest of us, that can’t be invested in the economy, and we will all suffer as a result. Plus RBS still belongs to the government, and we will lose that way as well.

What can we learn?

Any manner of things:

  • Bigger is not necessarily better.
  • There is no point in bidding for a contract that has such a slim margin that the slightest problem makes it run at a loss.
  • Big construction projects used to lose money for the government because of cost and time over-runs. That is why they were put out to tender. They can still lose money for a private contractor too.
  • It isn’t always best to take the lowest bid – will the bidder still be around when the project is completing?
  • Just because the government continues to employ a company doesn’t mean that it is financially secure – so make your own enquiries.
  • Being a sub-contractor or supplier in these circumstances is risky, and this needs to be factored into your price, or indeed your decision on whether to do the work at all.

I won’t even begin on the activities of the Carillion directors, the payment of dividends when the pension funds were in deficit, the vast salaries and bonuses, and the apparant failure to see the writing on the wall. Or indeed on the government’s involvement in things. These are matters for another day.

And I am not covering the question of whether governments ought to out-source activities in this way. Again, something for another day

It is a sad time for a lot of hard-working people. We all need to learn a few hard truths.

The UNISON Case – Biggest SC Case for Years

R v Lord Chancellor (ex p Unison) [2017] UKSC 51

This is my 100th post on this blog. I started it in June 2011 and had been intending to put up a commemorative piece, going over my favourite articles and looking forward to the future. I may still be doing this, but not now. Because the SC’s decision this morning is so significant that I have to cover it immediately

The facts of the case are simple. In 2013 the government imposed fees on applications to the Employment Tribunals, all of which had previously been free. By way of contrast the civil courts have charged fees for claims, applications and other activities for hundreds of years. But the ET fees were very high – £390 for the simplest claims, and £1,200 for the more complex ones, including Unfair Dismissal, Equal Pay and Discrimination claims. There were also fees imposed in the appeal tribunal – the EAT. These fees were generally to be paid in two stages – to issue, and to proceed to a hearing.

These fees were much higher than the fees for equivalent claims in the courts, and were in many cases to be paid by applicants who had just lost their jobs, so it is not surprising that immediately after they took effect  – on 29th July 2013 – the number of applications slumped by about 80%. It would appear that many employers took the view that instead of negotiating a settlement at an early stage they would wait until they saw if the employee paid the fee to issue and to proceed to a hearing before negotiating, as the number of settlements reported to ACAS fell as well.

Now this case wouldn’t be important if all that happened was that the fees were reduced to something a bit more reasonable. This is clearly what is going to happen in the end, even though there is no indication of this as I write. No, the interest is in the way the Supreme Court laid out the manner in which it clearly intends to behave in the future, as Brexit happens and the ECJ fades out of the picture. Because it made it abundantly clear that despite the lack of the sort of constitutional supremacy that a Supreme Court has in say the United States or Germany it is going to lay down the law in a totally fearless way and is not afraid to extract constitutional rights from the Common Law if it can’t find them in statute.

The Decision

The main speech is given by Lord Reed, with whom the other Justices in a bench of 7 agree. After setting out the facts, the statistical reports, and the history of the case, he sets out the constitutional principles  – in this context the rights to access to the courts, and that statutory rights are not to be cut down by subordinate legislation. And he then gives a lesson on the constitution in extremely simple but devastating words:

66.             The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services”.

67.             It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

68.             At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

69.             Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd. The same is true of cases before ETs. For example, the case of Dumfries and Galloway Council v North [2013] UKSC 45; [2013] ICR 993, concerned with the comparability for equal pay purposes of classroom assistants and nursery nurses with male manual workers such as road workers and refuse collectors, had implications well beyond the particular claimants and the respondent local authority. The case also illustrates the fact that it is not always desirable that claims should be settled: it resolved a point of genuine uncertainty as to the interpretation of the legislation governing equal pay, which was of general importance, and on which an authoritative ruling was required.

70.             Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

71.             But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.

72.             When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of alleged breaches of employment rights should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail. It is thus the claims which are brought before an ET which enable legislation to have the deterrent and other effects which Parliament intended, provide authoritative guidance as to its meaning and application, and underpin alternative methods of dispute resolution.

He then sets out the principle as found in all the standard constitutional documents, which some of us will remember from the beginning of a law degree – Coke’s Institutes, Blackstone’s Commentaries, and of course Magna Carta:

  1. In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.

For myself I prefer the traditional translation of the passage:

To no man will we sell, to no man will we deny or delay Justice and Right

He then quotes the  cases leading up to the present day. You can see them yourselves from the link at the top of this piece.

The Conclusion

Having looked at the principle he then applies it to the case. For court fees to be lawful they have to be set at a level that everybody can afford, taking into account any remission available. This is not being achieved. For a number of reasons:

  • The sharp and substantial and sustained fall in the volume of cases … as a result of the introduction of fees.
  • People are often obliged to resort to the ET jurisdiction involuntarily and unexpetedly.
  • The Review Report said 10% of claimants said they didn’t bring a claim because they couldn’t afford to do so. This means reasonably afford to do so – not by having to sacrifice “the ordinary and reasonable expenditure required to maintain …an acceptable standard of living”.
  • Hypothetical examples show that the cost to low-income families can be all their free income for up to 3 month. This is not affordable in the real world.
  • The statutory power of remission is far too restricted to change matters. It is limited to exceptional circumstances, but the problem is systemic.
  • Fees can prevent access to justice if they make it futile or irrational, such as in the case of low value claims for say unlawful deductions from wages, especially as many successful applicants recover nothing from their employers in the end.

The fees are therefore unlawful.

He scampered over the remaining points with a side-swipe at an attempted justification on economic grounds

99.             The primary aim of the Fees Order was to transfer some of the cost burden of the ET and EAT system from general taxpayers to users of the system. … Similarly, in his written case, the Lord Chancellor states that, in pursuing the aim of transferring the costs of the tribunals from taxpayers to users, “the higher the fees are, patently the more effective they are in doing so”. This idea is repeated: in recovering the cost from users, it is said, “the higher the fee, the more effective it is”.

100.         However, it is elementary economics, and plain common sense, that the revenue derived from the supply of services is not maximised by maximising the price. In order to obtain the maximum revenue, it is necessary to identify the optimal price, which depends on the price elasticity of demand. In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. It has not been shown that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users.

The fees are also held to be contrary to EU law as imposing limitations on the exercise of EU rights which are disproportionate, and hence contrary to Article 47 of the Charter of Fundamental Rights of the EU

Article 47 guarantees in its first paragraph that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”. In terms of article 52(1):

“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

As a result, and despite the Lord Chancellor arguing that the SC should only make a declaration that the current levels of the fees were too high the court disagreed in strong terms:

119.         That argument mistakes the nature of the illegality with which we are concerned. This is not a case in which an administrative decision is being challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision was unreasonable. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.

Lady Hale gave a subsidiary speech explaining why the fees also amounted to unlawful discrimination on the grounds principally of discrimination against women, who made up a high proportion of the more expensive Type B claims. And the rest of the court agreed with both of them.

The Consequences

The fees are quashed. Everybody who paid them will be refunded (at a cost estimated at £32m) and until new lawful fees are fixed all ET and EAT proceedings are free. There is a lot of egg on the government’s face, mainly on Mr Grayling’s who was LC at the time they were imposed.

But more importantly the SC has shown that it will stand up for the rights implicit in the rule of law – that there must not only be laws but they must be effectively enforceble through the courts if need be. “That is why the courts do not merely provide a public service like any other.”

I have written on many occasions on the subject of the need to have an effective court system that the public can use, and if it wasn’t the middle of the night I would give you the cross references. The most prominent are Having Rights is Not Enough and Mediation – not the Complete Answer, but there are many others – it is one of my hobby-horses. I may return to this in post 101 shortly, especially after the news that the civil courts made a profit in the last year. Therefore it is really good news that the SC is doing the heavy lifting for us and won’t let a mere politician get in their way.

So that is why I feel that this is the most important SC case for years, even despite the Brexit case in January R v SoS (ex p Miller) That merely showed that the government was doing something that it could do but doing it the wrong way. This is showing that the whole basis of what they are trying to do is wrong, and that is what gives it the importance that it has.

A Tale of Sheep, Goats, Foxes and Dinosaurs

I’m writing this on 29th March 2017, and the only thing that we can be certain about for the next two years or more is that things will be uncertain. So what can you do to make the best of it, as a family, or a small business, and what can we do to help you?

Things have also changed radically in the court system. There are far fewer courts and fewer court staff, legal aid has disappeared, and procedure keeps changing. Litigants have to do a lot more work, yet the costs you can get back have been slashed. It is a new world.

And with a new landscape, like the earth after the asteroid, this is no place for dinosaurs. This piece is aimed at helping you pick the lawyers who will help you to survive. Sheep, goats and foxes survive – dinosaurs don’t – so how can you tell them apart?

The Sheep, the Goats, the Foxes and the Dinosaurs

The Sheep are big companies, the Government and its quangos, and the rich, and their lawyers. They can afford to carry on much as before and have hardly noticed a change.

The Goats are smaller businesses, landlords and tenants, and the rest of the population. They use Foxes to help them – smaller specialised lawyers and other agencies who adapt rapidly to change. They have noticed very significant increases in cost and in the time taken to deal with their legal cases. So they have to be canny and resourceful, and will be the heroes of this article.

The Dinosaurs used to be either Sheep or Goats, or their lawyers. They didn’t notice the change in the legal environment until it was too late, if at all, and so are trying to carry on as if nothing had changed, with disastrous consequences. They can’t cope with the changes and are infuriated with the way in which the Foxes run rings round them. The lawyers have gone out of business.

What to look for in a Fox

In the new world there are many new markers to help pick out those in the know:

  • They are light on their feet – ready to adapt to changes quickly. Just because they always did something one way doesn’t mean that it’s the best way now.
  • They keep up to date – there are frequent changes in the law and procedure, and in the court decisions that follow them. You have to be ahead of the crowd to win.
  • Winning matters – you want a lawyer who will win for you.
  • They keep an open mind – there are lots of different ways of doing things. If one way doesn’t work they pick another.
  • Payment by the hour is on the way out – clients much prefer fixed fees, or payment in stages, so they offer this when possible.
  • They know the shortcuts – nobody wants to go all the way to trial. They know how to get summary judgment, or get the defence struck out, or most importantly, a good offer.
  • They specialise – nobody knows everything well enough to be really good at it. And being really good matters.
  • They get it right first time – you can’t afford to do things twice.
  • They don’t carry passengers – they have a few experts plus a flexible team of contacts to call on when they need them. Why should you pay for all the extras that you don’t need?
  • They’re friendly – this is the key to being a small business. They get on well with their clients, with the courts, and with other lawyers. They don’t waste time with histrionics – they get to the point and get things done.
  • And they remember that they’re lawyers – they advise you, they do the business, but at the end of the day it’s your life, and your business, and they let you make the decisions and call the shots when it matters.

I can’t tell you everything. This is only a short article, and besides, I have a living to make, so come to me, and the Team, to learn more. But remember, this is the new reality. And if you ignore it you are likely to go the same way as the dinosaurs. Which is not a good idea, on the whole.

Forget Civil Partnerships – try Cohabitation Agreements

You will have noticed the case in the CA today which refused to allow a Civil Partnership between a heterosexual couple  – Steinfeld & Keiden v SoS  I’m not sure quite where this is going or why they wanted a Civil Partnership rather than a marriage, but it is part of a larger question – how to deal with cohabiting couples, who have far fewer legal rights and a lot less protection than they think.

I wrote a piece on this some time ago when there was the suggestion of having a Cohabitation Rights Bill. If you are interested in the legal aspects than by all means go back and have a look. However, the final part of the piece is worth reading again now.

My Solution

I  have a proposal which would make a real difference to cohabitation in future.

Parties intending to live together permanently should enter into a “cohabitaton agreement” which would give them significant enhanced rights. The agreement would not be compulsory but should be encouraged by say tax benefits and social pressure. After a time I would expect it to become normal and for people who did not do so to be a small minority.

The agreement could be fairly short, and merely require the parties to live together and look after each other to the exclusion of third parties. In order to make it more attractive and romantic you could include phrases about “in sickness and in health” and “to love and to cherish”.

The parties should make the agreement by saying the words out loud before some state official and in the presence of at least two independent witnesses. This way there could be no argument about whether they consented to it or not. They may give each other small gifts such as a ring. Then they would all sign a register.  Clearly this will need to be set up beforehand, and they will no doubt get their families and friends to attend. There may be some singing or at any rate music, and everybody will no doubt go off for a few drinks or even a full-scale party afterwards.

The basics would only cost a couple of hundred pounds, although if you wanted to pay more then nobody would stop you. Your parents may well chip in, and of course everybody would dress up. It may become fashionable or indeed standard for the woman to wear a fancy dress of a distinctive colour, and the man would wear a very smart suit which he may have to hire.

Afterwards the parties would have all the rights and privileges of a married couple. As indeed they would be.

You cannot be serious!

Well perhaps not. But I think a lot of people have overlooked the distinction between a marriage and the wedding. You don’t need a vast multi-thousand pound celebration to be married, but you do need to enter into some basic commitments if you are going to live together for the long term. Societies have had marriage for thousands of years and they can’t all be wrong. Perhaps the problem today is that we have the solution to the difficulties of cohabitation right in front of us and can’t see it.

Perhaps this doesn’t help Miss Steinfeld and Mr Keiden, but I can’t do everything.

Aurel Sari: Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU

Not my normal area of interest, but a very good piece here by Aurel Sari of the University of Exeter on whether an Art 50 notice can be revoked.

UK Constitutional Law Association

aurel-sari‘There is no going back.’ These were the words of Lord Pannick, uttered before the High Court in response to the question whether the United Kingdom could rescind its notification to withdraw from the European Union once issued under Article 50 TEU (Santos and M v Secretary of State for Exiting The European Union, uncorrected transcripts, p. 17). The claimants and the Government appear to agree on this point and accept that the UK cannot reverse its notification of withdrawal.

It is easy to see why this position should be attractive to both parties. For the Government, it means that once the notification has been issued in accordance with the UK’s constitutional requirements, it would be shielded from any subsequent domestic legal challenge. For the claimants, the irreversibility of the withdrawal notification is of ‘vital importance’ (uncorrected transcripts, p. 14). It is this irreversibility which…

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