Jordans Company Secretarial PrecedentsPeter Van Duzer, Cecile GillardJordans, £120 I was delighted when I was asked to review Jordans Company Secretarial Precedents, as it is a book I have always had to hand. Some years ago, having been away from the law for a while, I set up a small law practice on an overdraft facility of £1,000. With such limited funds available, I had to choose my resources carefully. Online subscription services were out of the question and, having trawled the bookshelves in Blackstones, I selected the then current version of this book. Compared with many other books, it seemed to represent very good value for money and the same holds true today. It obviously stood me in good stead and my small practice grew steadily. Years later, and after relocating to Cornwall, I am now an associate partner at an award-winning law firm, heading its corporate and commercial department. We do, of course, have easy access to numerous online resource services, but Jordans still sits within easy reach on my desk. The reason for this is simple: Jordans is a mine of useful information for any practising corporate/commercial lawyer. It is set out in a user-friendly fashion that is easy to read and to locate the topic you are interested in. The text is always informative and concise, and the precedent forms (which are usually filled out by way of example) and sample resolutions are invaluable when teaching trainees. They are useful too for experienced lawyers who, on the odd occasion, might find themselves in uncharted territory. The book also has a CD that contains all of the precedents in electronic format for ease of use. In sum, this is a valuable publication. In fact, in my department it is the only hard-copy publication used on a regular basis by members of the team at all levels of qualification. Congratulations to the authors – keep up the good work. Penny Paddle is an associate partner, and head of corporate and commercial, at Follett Stock in Cornwall
This year, the opening of the legal year is especially significant, for it marks a new chapter in the eminent history of our profession – the Supreme Court is to open its doors for the first time. Irrespective of sporadic controversy surrounding its creation, the establishment of the court is emblematic of the independence of the judicial system and those who work within it from the body politic. This is an important message to send both to parliament and the public. Access to justice means more than an equal ability for all to use the justice system. It is the right to witness the workings of a court in person, to view easily the outcome of cases, and to understand the procedures, processes and personalities involved. The transparency of the new court will hopefully demystify the workings of the judicial system and dissipate some of the occasionally wilful misunderstanding propagated in the media about the work of the judiciary. In any event, the more the rule of law is given visible, practical effect, the better. I have referred before to solicitors embracing the challenge of change. The establishment of the court may well presage similar challenges for both the government and the judiciary – and I suspect that Lord Justice Jackson’s review of the costs of civil litigation may be a critical one. There is little point in paying lip service to the rule of law and access to justice if civil litigation is prohibitive due to cost. It is idle to forecast the outcome of the Jackson review, but Lord Justice Jackson will bring a vigorous and independent approach to the issue of costs in litigation. I am certain that the review will result in a series of clear and trenchant recommendations. All, however, will be potentially for nothing unless the government injects money into the court system to support any reform. Moreover, no reform should be implemented before there is a stringent impact assessment on access to justice in this area as well; the lack of a rigorous impact assessment for criminal justice has, on occasion, proved a serious mistake. Independence DayThe Society will have a major presence at the International Bar Association conference in Madrid next week. The centrepiece of this year’s conference for bars will be Independence Day – a day of roundtable events during which the international legal community will debate ways of cementing the independence of the profession. I shall be participating in a discussion on alternative business structures, which is destined to be a topic of major interest. England and Wales leads the world in legal market innovation, but we need to build a consensus around our ideas to maintain our position. While the home front naturally remains the Society’s primary focus, we cannot afford to narrow our international outlook. We are a proud member of the international legal family, but we would much rather be standing at its head than amid the pack. I wish you all a very happy and successful new legal year. Robert Heslett is president of the Law Society International solidarityThe opening of the legal year is as much international as it domestic. It is the day when lawyers from around the world – particularly from common law jurisdictions – stand in solidarity with English and Welsh lawyers. This year, the Law Society and the Bar Council will be using the occasion to build support for a joint resolution with other bars, reaffirming our shared commitment to legal aid and the provision of access to justice. We will be receiving guests from 56 different jurisdictions, and we are hopeful that a great many will be able to sign. The resolution will call on governments to make stronger financial commitments to ensure access to justice for all, and encourage members of the profession to undertake fairly funded legal aid work, as well as pro bono. Above all, it will commit us all to work together more closely and, with our governments, to improve access to justice globally. A constant throughout the relationships forged between lawyers across nations is the commitment of all to the concept of the rule of law – and it is a concept which bears constant repetition. Although the rule of law is an abstract concept for some, for others it is very real. Many of those who seek justice too often find their individual liberty and sometimes personal and physical well-being threatened. I am humbled meeting those for whom the concept is no abstract notion but a bleak reality. We should never take the rule of law for granted, wherever we practise. The notion of the ‘legal family’ is more than just a lazy cliche. We are all bound by the same duties and values. We have shown our commitment to it in the past through our support for the Supreme Court Bar Association of Pakistan and the Law Society of Zimbabwe when they have been faced with difficulties. We are delighted to welcome the presidents of both of those bodies to London this week. However, the legal family comes together not just in times of crisis. In today’s global market, we find that increasingly we face many of the same problems as our colleagues in other jurisdictions. It makes sense that shared problems should receive shared analysis, even if our solutions need to take account of our different jurisdictional requirements. The opening of the legal year is the ideal opportunity for us to sit down with our friends and colleagues from the United States, Australia, Canada, Singapore and Hong Kong, as well as with those we see regularly from elsewhere in the EU, and discuss our common issues. The fact that so many bars from around the world want to come to London to participate in this occasion is a ringing endorsement of the role that our profession plays around the world, and the leadership position that the Law Society enjoys internationally. The Society’s commitment extends beyond the opening of the legal year to international bar events held throughout the year. The influence of the English and Welsh profession depends on extending the ideas generated at home to other jurisdictions, and to leading the way in demonstrating creativity, ingenuity and innovation within the legal market.
The Ministry of Justice today announced new fixed advocacy rates for family legal aid, which harmonise the fees paid to solicitors and barristers. The new structure follows a lengthy consultation process and will see hourly rates replaced with standard fees. Barristers and solicitors will be paid at the same rate for advocacy work. Following feedback from the professions, the MoJ has introduced more graduation into the fee structure to ensure those advocates who take on more difficult cases are better rewarded. The MoJ also confirmed that the proposal to remove payment for independent social work from the scope of legal aid in private law cases will not be implemented. Legal aid minister Lord Bach said: ‘The new fee schemes direct more money into public law cases to ensure that children and adults at risk of abuse take the highest priority for legal services.’ He said the scheme did not mean cuts to the legal aid budget or to the services received by children and families, but added: ‘Some funding will be moved from barristers to solicitors, as barristers and solicitor-advocates will now receive the same fees for the same advocacy work. ‘The reforms published today provide a sensible way forward, which responds to comments made during the consultation process,’ said Bach. Carolyn Regan, chief executive of the Legal Services Commission, said: ‘We listened carefully to solicitors and barristers during the consultation. We agree with their view that they should be paid equally for equal work and that vulnerable clients must be protected. ‘The changes we are making achieve both these goals. They will safeguard high-quality family law services for children and other vulnerable clients by controlling future growth in costs that would otherwise put all services at risk. They will ensure fairness so that all advocates will be paid the same for doing the same challenging work.’ Robert Heslett, Law Society president, said: ‘The Law Society welcomes harmonisation and the recognition given to the valuable work undertaken by solicitor advocates. It is pleasing that this reflects the submissions made by the Law Society during the consultation process. Even accepting budget constraints and an emphasis on public work, there is concern for firms across the country who carry heavy overheads and it remains to be seen whether they can remain in business on such low rates. This may well seriously affect the supply of advice to families. We will study the figures in detail and continue to do all we can to ensure proper access to justice for those who need high-quality legal advice at a time of immense importance to them.’ However, Heslett described the rates for private representation as ‘disappointing’ and devoid of a clear rationale. ‘This is the main work for firms across the country who carry heavy overheads and it remains to be seen whether these firms can remain in business on such low rates. This may well seriously affect the supply of advice to families,’ he said. ‘We will study the figures in detail and continue to do all we can to ensure proper access to justice for those who need high quality legal advice at a time of immense importance to them.’ The LSC will shortly publish the response and impact assessment on its website. It plans to introduce the new schemes in the new civil contracts in October 2010.
John Hawks has seven years on me as a solicitor and will, I suspect, remember charging scale fees for conveyancing (see letters, 19 November). By the time I qualified in 1980, changes were afoot. I now look back along the road we have travelled. We are no longer a profession in the sense my father knew. We have squandered the respect in which we were held by the public on the altars of budgets, targets and timesheets, in honour of the god Profit. We have devalued our services. We have abrogated responsibility for leadership to a few stalwarts who do their best in impossible circumstances. Whatever exclusive preserves of practice we once had have been given or taken away. I get letters from hopeful students wanting a training contract, lured by fanciful tabloid tales of fat cats. I have had six trainees in my time, but now I reply and question their logic. Why spend all that money qualifying and earning a pittance into the bargain, when others unqualified can do almost everything a solicitor can do with half the regulation and half (or less) of the insurance overhead? When the Thatcher government decreed that competition was a ‘good thing’, the advent of licensed conveyancers saw us cut our conveyancing costs again and again. The lifeblood of a once proud profession ran down the drain there and then. The regular income previously enjoyed, that enabled you to do the odd job for Mrs So-and-so without charge; that enabled you to take on a meritorious case without raising interim bills on the basis of a timesheet (unheard of!); that enabled you to do many times the pro bono work you do now; that enabled you to do legal aid work at its usual uneconomic rate; all gone. We missed the trick. We competed on price, not on service. Will writers, claims handlers, independent advisers – all have chipped away at our ‘professional’ preserves so that they really do not exist any more. Why would your average punter choose to buy legal services from a high street solicitor at a price born of stratospheric insurance, professional and other costs when he will be able to buy it from a trusted brand – also on the high street – for less? Because we are ‘independent’? Don’t make me laugh. This is the real world, not some rose-tinted yesteryear. Now I have to be a businessman first, a lawyer second, and a solicitor by happenstance. So, if business demands that I pay a referral fee then that is what I will do – to compete and to survive. Removing the ability for a solicitor to pay a referral fee in controlled circumstances, in whatever sphere of practice, is only going to limit our ability to compete in a market where others do not fight with one hand tied behind their back.Michael R Moore,ML Law, Eastleigh, Hampshire
It came as a breath of fresh air to read in last week’s leader how as a profession we complain that we are no longer respected, while, on the facing page, a letter from Peter S Hughes confirmed his rugged independence and refusal to enter into referral fee arrangements. As long as the profession includes persons of similar ilk, it retains respect in areas where they practise. Such respect arises from pursuing what I fear are now considered old-fashioned methods, namely a simple one-to-one approach without advertising or any demonstration of ego. Sadly, such methods seem to go unnoticed by our professional body, whose direction seems to be governed by a desire to make us aggressive business people operating in an electronic market, governed by a motive to achieve even greater market share. This is not what we as a profession are really about. We should not forget that the bulk of the profession is made up of provincial offices undertaking personal legal services which earn these offices respect. This is easily measured by the very high percentage of repeat business that I – and I’m sure Mr Hughes – enjoy. The problem, however, is whether the younger generation pursues the same modus operandi. Richard A Pitt, Beadle Pitt and Gottschalk, Canterbury
Noted wit Clive Anderson’s obituary – and let the day of its publication be far distant – is unlikely to dwell for long on his legal career. And why should it, when the one-time Cambridge Footlights president can boast of being the very first act on stage when London’s legendary Comedy Store – the cradle of alternative comedy – opened its doors in 1979. The erstwhile barrister showed that he still knows how to wow an audience at last week’s launch party of the rebranded Solicitors Benevolent Association, now SBA The Solicitors Charity, of which he is the new vice-patron. Anderson (pictured) confessed to being ‘as nervous as a Welsh badger with a chest infection’, but mused: ‘What I wouldn’t have given 20 years ago for the undivided attention of a roomful of solicitors.’ Expressing his pleasure at becoming involved with the charity, he admitted some ignorance of its workings, while confessing that he had previously been aware of the Barristers Benevolent Association, which, as he said, ‘distributes literally hundreds of pounds a year’. He quipped: ‘I’m all for these things – it’s the 99% of lawyers that get the other 1% a bad name.’
The Judicial Appointments Commission (JAC) and the Judicial Appointments and Conduct Ombudsman will not fall victim to the government’s ‘bonfire of the quangos’. Justice secretary Kenneth Clarke (pictured) told parliament today that the two bodies will remain in place ‘as valued independent bodies, which do much to bring openness to the way candidates are selected for judicial appointments’. He did however criticise the length and cost of the appointments process, saying he will work with the JAC on more detailed proposals for improving the appointments process. Clarke’s decision follows a review of the operation of the judicial appointments process which began at the end of June. The JAC said in a statement: ‘While we are pleased that the important role played by the independent selecting commission in ensuring an independent judiciary has been recognised by the lord chancellor and the lord chief justice, the commission also recognises there will always be scope to improve efficiency and we look forward to working with our partners in the end-to-end process to achieve that.’ Clarke said: ‘It is clear that, at times, the appointments process can take too long and cost too much. The first duty of the commission is to maintain the high quality of judicial appointments, but I believe that the JAC should also focus on delivering efficiency in the selection of judges, working with the judiciary and the unified Courts and Tribunals Service. ‘The recruitment of the new chair of the JAC is underway and, with the lord chief justice, I look forward to working with the commission on more detailed proposals for improving the appointments process, in the first instance within the existing statutory framework. Any subsequent proposals requiring legislation would be brought forward in the usual way.’
The Legal Ombudsman has begun publishing anonymous case studies as part of a drive to improve client service and complaints-handling by law firms. The published complaints have been broken down into areas of law. Complaints revealed so far include a criminal defendant who felt his lawyers were not following his instructions properly to get new evidence for an appeal against his conviction. In another case, a family law firm took seven years to process an order that was supposed to have been completed within eight weeks. The publication forms part of LeO’s plan to increase the amount of information available to the public about complaints against law firms. However, the ombudsman was criticised last year by the Legal Services Consumer Panel for delaying plans to publish information that identifies firms that have had complaints made against them. The complaints information can be found on the LeO website.
Custodial sentence – Young offenders – Detention and Training order R v March  EWCA Crim 551 considered. Daniel Williams (assigned by the Registrar of Criminal Appeals) for the defendant. R v T: Court of Appeal, Criminal Division: 16 September 2011 The defendant, aged 16, was in a city centre with friends following a football match between Wales and England. The victim, who had consumed alcohol, was walking in the same city centre with a group of friends. They came across the defendant and his friends. The two groups got into an argument, The defendant walked past the victim. He confronted him and they started arguing. Suddenly, the defendant threw a punch at the victim that knocked him to the ground. The victim hit his head causing him to sustain severe head injuries, including swelling to the brain. He fell unconscious and was taken to the hospital. The victim fell into a coma, with a coma scale score of 3 out of 15. The victim eventually regained consciousness and underwent a course of therapy. However, his chances of making a full recovery were poor. The defendant pleaded guilty to inflicting grievous bodily harm. At the time of the offence, he had been on licence for another offence and liable to recall. The judge referred to the guidelines of the Sentencing Guidelines Council and acknowledged that the defendant was entitled to credit for his guilty plea. He noted that the maximum permissible Detention and Training Order under section 101 of the Powers of Criminal Courts (Sentencing) Act 2000 was two years. However, the judge noted that an older defendant would receive a greater sentence and that the appropriate sentence for the offence was substantially more that the maximum of two years. The judge took account of the defendant’s youth and his plea. However, given the seriousness of the offence, the fact that it was the third occasion that the defendant had committed a violent offence, and that he had been subject to a licence at the time of committing the offence, the judge declined to give a discount for the guilty plea. The judge further declined to give the defendant credit for time spent in custody on remand and he sentenced him to a two-year detention and training order. The defendant appealed against sentence. He submitted that it was wrong in principle not to give a discount for his timely plea. He further submitted that the sentence, being the maximum sentence available for the offence, was manifestly excessive and failed to take account of his age and guilty plea. The judge ought to have given credit for the plea and imposed the next available sentence, namely 18 months’ detention and training. The issue was whether the judge had been entitled to impose the maximum sentence for the offence on a young offender who had committed a serious offence with grave consequences, notwithstanding his guilty plea. The appeal would be allowed. It was settled general principle that a plea of guilty attracted some discount from the sentence that would have been imposed in the event of a conviction following a not guilty plea. That principle plea remained. The exceptions to the general rule included: (i) where the imposition of the maximum term was necessary for the protection of the public; (ii) where the plea was of a tactical nature; (iii) cases where a plea was practically speaking inevitable; (iv) where the count was a specimen count. The existence of an exception did not automatically mean that the maximum sentence was to be imposed regardless of a plea of guilty; all the circumstances fell to be considered. In the instant case, the judge had erred in failing to reduce the sentence to take account of the defendant’s guilty plea. The maximum sentence for the offence was 24 months’ detention and training and the fact that an older defendant would receive a substantially longer sentence was not relevant. None of the exceptions to the general principle of reducing a sentence to take account of a guilty plea applied in the instant case and it was not possible to say that a departure from that principle, and allowing for a short period of six months (three months of which would be in custody) was necessary in order to achieve the protection of the public. In all the circumstances, there was no justification for allowing more than the minimum reduction. The sentence of two years’ detention and training order would be quashed and substituted by an 18-month detention and training order.
Solicitors outperformed barristers in two selection exercises for the judiciary completed earlier this year, the Judicial Appointments Commission (JAC) has revealed. Eleven solicitors and eight barristers were selected as district judges (magistrates’ court) and 14 solicitors and 11 barristers as lawyer chairmen of the Residential Property Tribunal Service, all in selection exercises completed between April and September 2011. Women also performed strongly, making up 43% of the total of 478 judicial appointments this year. Black and minority ethnic (BME) candidates performed strongly in the selection exercise for lawyer chairmen of the Residential Property Tribunal Service, accounting for six (21%) of the 28 appointments. JAC chairman Christopher Stephens stressed that despite the encouraging figures, published in the commission’s December statistics bulletin, solicitors were still not properly represented on the bench. ‘Solicitor selections will improve only if more apply for judicial roles and are given the opportunity to do so by their firms,’ he said. The Law Society’s head of equality and diversity, Pat Corcoran, warned against complacency: ‘The JAC process has come under much scrutiny and is now more transparent than ever before, but how convinced is the judiciary about the benefits of diversity? The judiciary believes that its present structure is based solely on meritocracy, and that the best is always manifestly the best. This reinforces an almost unconscious bias to appoint in its own image.’ Meanwhile, former lord chief justices Woolf of England and Wales, and Carswell of Northern Ireland, last week warned the House of Lords constitution committee that any changes to the present system of judicial appointments should ‘go forward with caution’. Former JAC chair Baroness Prashar, also giving evidence to the committee, said that the JAC’s role was to widen the pool of people applying for judicial posts, but she said she was opposed to any parliamentary role in judicial appointments. In a forthright defence of the commission’s independence from government, she said: ‘The JAC is already accountable. When chairwoman, I appeared four times before parliamentary committees and the JAC produces an annual report. We must preserve our independence from the executive.’