No more heroes..

My best childhood friend would have been 102 this year. Gran and I would spend hours doing jigsaw puzzles. Loved them – still do, along with my kids. 

It’s all about a challenge, a mountain that’s there to be climbed, has to be climbed - just because it’s there.

In professional life that translates to battles that need to be fought, that should be fought, that simply must be fought.

It’s the spirit that drives me to listen to people who have an issue, to understand and embrace it, step in front to protect them and apply whatever problem-solving skills are required to make it right - at least make it better.

Often, we hope, there’s a commercial return. Yes, OK – money. It does come in useful.

Often there isn’t. The only reward is spiritual – gratitude, reputation, feelgood. But I do it.

Champion?  Yes. Hero?  Maybe - you decide.

Unique?  No.

I’m just like thousands of other lawyers, many of them in “small high street practices”, doing what they – we – feel is right and proper.

We’re the people who make up in this context the ‘private sector’ that the Government confidently expects to fill the gaps as it takes away yet more facilities for justice and destroys incentives for private enterprise to take funding risks to keep the wheels turning.

Bankers and insurers are not our masters – as they know only too well. On the contrary, we’re the people who dare to stand up for the little guy, to challenge them and their poodles whose only goal is profit.

But these faceless money machines have successfully pitched camp in Downing Street and Whitehall to urge the relentless attack on every discernible obstacle that private law practice presents to their domination and control of access to justice.

The law will ultimately wither because of the lack of independent and objective practitioners to sustain it.That private sector is going to shrink – maybe all but disappear.

The time is coming when there will be no better option than the 24/7 helpline that is always engaged until the small hours when you may only speak to someone on the other side of the world with a menu of fixed options on a screen – and neither of you understands.

This is the perfect world of bankers and insurers. A world where they do and take what they like at minimal cost, maximum profit and with impunity.

Where there is no longer anyone able to defy them.

Where all opposition is strangled.

Stand up and be counted now - for soon there may be no more heroes.

Another little ray of sunshine!

I was delighted to read yesterday morning news of the Court of Appeal’s judgment in Simcoe v Jacuzzi UK Group Plc.

The Master of the Rolls, in a short judgment with which his fellow Lords Justice both agreed, has restored the long established principle that interest on litigation costs runs from the date of the order for assessment, and not the (later) date on which they are quantified.

For the Latin scholars (?!) amongst us, what is known as the incipitur rule was rudely bundled into the cupboard by a decision of his Honour Judge Stewart sitting at Liverpool County Court in November 2010.  The case of Gray v Toner has had insurers and other paying parties rejoicing every since.

For me it’s just been another repugnant example of how innocent victims of accidents are put to yet further inconvenience and cost to add insult to injury.

The central argument that provoked Judge Stewart’s decision fifteen months ago was that clients represented under the terms of a conditional fee agreement (“CFA”) or other funding arrangement are not out of pocket because they do not fund the litigation.

Any concerns about the fairness of expecting claimants’ solicitors to bear the financing burden without ultimate reward, to the benefit only of insurers, were dismissed in a short comment I read anticipating Supreme Court involvement.  The author says that any loss or expense borne by the solicitors funding the litigation could and should have been covered by a “deferment element attached to the success fee”.

He’s quite right that this can be done - it’s been permissible since the current regime (as amended in 2005) began.

But that portion of the success fee is recoverable by the solicitor from the client, not by the client from the third party.  So if that is in place then who’s out of pocket?

Er, that’ll be....the client.

Plainly, the right decision.  Thank you my Lords. Keep them coming..

Personal service

I know what you lawyers are thinking, but you’re wrong.

Recently I took my seventeen year old son, who invariably has more money than his father, to acquire an LED television that would do justice to the X-Box and other gadgets that partly explain the comparative wealth issue.

We headed for one of the major electronics retailers where there is a salesman, been around for a while, who makes the whole experience of parting with lumps of money less painful.  He’s always bright and cheerful, seems to know a lot about everything, usually up for a bit of a deal and cracks jokes along the way. Top of the tree.

So with only vague ideas beyond that we want something rectangular with a wire and a moving picture, we head in store with eyes peeled for The Man.  Let’s call him “Richard” – we always do.

Of course, he spots us almost before we see him, recognising us from the last visit five or six months ago and knowing full well who we are looking for.  He will be with us as soon as he can (when he has finished dealing with at least three other people). 

Now here’s the point.  I don’t want to deal with anybody else.  There are quite a few other assistants around, possibly up and coming and good at what they do, waiting to get better if they are given a few more opportunities. You might say that Richard should see that it happens, even though it may not necessarily be his responsibility. 

Actually the choice was mine.  I could have said to any of those guys that I would like some help but we chose to wait for Richard.  He went backwards and forwards, managing to amuse us just in the way he explained why he would be a little longer. 

Of course he would be, because once he’s dealing with any particular person he does not interrupt that to take a telephone call or see somebody else who happens to have dropped in.

I understand that only too well.  You can’t give a personal service without observing that discipline.

Yet what is telling about this little experience is the way that I felt that Saturday, with no pressures of time and out of the work environment.

I didn’t have to deal with Richard.  It was my choice to wait.  Not only could I see, and hear from him, that he was busy - I expected him to be busy when I went into the store.

Notwithstanding all that, and in my supposedly chilled state, I still felt irritated that I had to wait to see him.  Conclusion is that sometimes that frustration simply cannot be avoided, whatever resources or choices are in place.  Best answer is that everybody, on both sides of the table, understands the conundrum.

A ray of sunshine

It's easy enough - and getting easier - to lose sight of the law amid the web of regulation and powers given to various non-judicial bodies to adjust solicitors' charges.

Even judges get confused by it. I've been there - referring reverently to s15 of the Supply of Goods & Services Act 1982 whilst the court rules that even partial and inadvertent non-compliance with client care rules somehow precludes the existence of any right to be paid for your work.

This is a while ago for me, thankfully, but it still smarts. Dame Mary Arden's very sensible decision in Garbutt v Edwards in 2005 did much to put the lid on daft challenges but I know they still happen. In low value cases, appeals are realistically out of the question.

Seems it's the province of the fairer members of our Senior Courts to keep order here as The Honourable Mrs Justice Lang now weighs in with some clear and thus welcome interpretation in Fladgate LLP v Harrison [2012] EWHC 67 (QB) at paragraph 39 in particular:

" In my judgment, the giving of instructions by a client to a solicitor constitutes the 

solicitor’s retainer by that client. It is not essential that the retainer is in writing. It 

may be oral. It may be implied by the conduct of the parties in the particular case. 

Under the Solicitors Code of Conduct 2007, certain matters must be provided in 

writing: 

i) The name and status of the person dealing with the matter, and the person 

responsible for overall supervision (rule 2.02(2)(d)); 

ii) Any information about the cost (rule 2.03(5)); 

iii) Details of the applicable complaints procedure (rule 2.05(1)(b)). 

But the Code Guidance explains that “it is not envisaged or intended that a breach … 

should invariably render a retainer unenforceable”. "

(Copy of the full judgment is available through the link at the foot of this post).

So, the law that works - when needed - for all other areas of commerce applies to solicitors too? Good. 

Hopes of a level playing field endure (just).

Fladgate LLP v Harrison

Off track..

“If you regularly send large volumes of parcels to your customers, you can now track them from despatch to your customers’ doorstep with our two Royal Mail Tracked ® services – Royal Mail Tracked® and Royal Mail Tracked Next Day®, the Royal Mail website informs us. 

Excellent. That must be a real comfort. Yes it is, look... 

“Royal Mail’s Tracked® services are a simple, cost-effective way to send your goods. Parcels are tracked to delivery giving both you and your customers peace of mind.” 

I wonder how much peace of mind it would give the owners and staff of Superdry to know that a presumably quite valuable parcel was left with other post this morning on our doorstep. 

Even somebody not blessed with the specialist navigational skills of our postal service staff could see at a glance that the doorstep it should have landed on is nearly 100 yards up the street. 

Nice idea lads.

Law - a science and an art

The case of Padden v Bevan Ashford is currently attracting a lot of interest and comment where the Court of Appeal has recently overruled the trial judge’s decision to throw out a negligence claim against the South-West law firm on the basis that it would have imposed an “wholly unreasonable standard of care” on solicitors giving free advice.

Unfortunately it’s a common situation.  The client had quite a complicated legal problem involving valuable property rights and fraud but wanted free advice in a hurry.  Initially at least, she was seen by a very junior member of the firm who spent about fifteen minutes giving the wrong advice.  That client now says she lost thousands of pounds which she seeks to recover by a professional negligence claim.

I sympathise with Bevan Ashford. Most legal advisers will have been in this situation, many more than once.  I know I have.  There is a desire to help but a limit always on how much you can do for nothing.  Frankly, the only sensible thing to do if it’s at all complicated is to say “no”.

But it’s all too easy to succumb to that pressure from the desperate client to imagine it’s as quick and simple as they insist.

As one commentator observed last week, the problems of oversimplification are exacerbated by the advent of alternative business structures and the increasing tendency to commoditise law.

Many think it is just a science and you only need push a button to get the right answer.  There are some aspects which lend themselves to this sort of process but not as many as liability insurers and others insist.

Judith Gordon, a former in-house lawyer at a major utility and now the director of Professional Business Structures in Shropshire, captured the points succinctly;

“Law is both a science, in the sense that it needs knowledge, and an art, in that it requires insight into human nature, experience of dealing with similar problems and, sometimes, inspiration in order to get it right.  I believe that only solicitors can bring this mix of skills to these delicate situations and we need to educate the public more about the true nature of what we do”.

I agree.