Tuesday, 10 February 2015

Patriot games

My blog is littered with tales of inefficiency and incompetence within the Court Service and government offices.[1]   My colleagues in the litigation industry won’t be surprised to know that we don’t catalogue every event. We haven’t the time!

Today I have something special to relate – special because of its intensity, much to the misfortune of one particular client.  There’s also a ray of sunshine from the Dorset coast...

Other litigators will have noticed that whilst many court offices now take far too many days or weeks (or months – Staines!) to process fairly simple correspondence and applications, increasingly they seem to find time to invent ridiculous objections.

I have in mind a number times that we’ve had people at the Salford centre of excellence, aka the County Court Money Claims Centre send back requests for judgment because they reckon the interest we calculated from issue until judgment is incorrect.  When, as it often is, it’s a matter of a few pound or pennies involved and the perceived error is potentially to the advantage of the defendant, it is hard to understand why they worry.

We’ve tried helpful things like stating in the covering letter that (as the particulars of claim already made clear) there is a claim for contractual interest at a different rate from that more often claimed under the County Courts Act 1984 – so don’t bother trying to reconcile two different figures.

That doesn’t work – but then that’s the theme.

Anyway, we now have an entertaining case where one poor client is the victim of a series of cock-pus by government agencies, starting of course with one of our West Country courts.

Almost a year after we obtained a judgment, and for sound but complex reasons that matter not here, we made application for a charging order to secure the judgment against the male defendant’s interest in the property solely owned by him.

The application came back to us more than a week later – by post of course – no email, no phone call.

There were two reasons for rejection the first of which was that the date of the judgment was wrong.  Was it wrong when we submitted the application?  No.

What appears to have happened is that on arrival of the application at the court office, somebody noticed that they had put the wrong date on the judgment a year ago.  So they amended that and then decided to send our application back to us because the date that we had cited was now incorrect.

Let’s not think to make a neat manuscript amendment and apply the court seal, eh?  Let’s not bother asking solicitors to send an amended page by email.  No – slap it back in the post and waste another week or so.

Just for good measure of course there’s a second reason for rejection.  This was that the amount of the judgment debt didn’t match the figure in the charging order application.

Perhaps there’s a clue in the standard wording that appears within the practice form after the monetary amount – “which includes further interest payable on the judgment debt”.

So we waste a week and some more costs but after making our displeasure known, we get an interim charging order against the first defendant.  Since he’s the sole owner, we didn’t bother with the second defendant, his estranged wife.

Before serving copies of our order we head for the Land Registry to get it protected by an entry on the registered title.  It’s all standard procedure and our forms automatically draw in the name of the client as the applicant for the benefit of an entry on the title. It’s carefully checked, nevertheless.

It’s all done in the usual quick time and official copies are made available to us through the electronic portal. The only snag is that the ex-wife, second defendant, is recorded as having the benefit of our charging order!

That’s also fixed now and we are moving on but it seems to be more often the case that you can’t stop off at the office of any government service now without serious risk of a screw-up with consequent delay and added (irrecoverable) expense.

My patriotic view on this (see attached image) is that we’ve starved our infrastructure and run it down more than enough. Another five years of this approach and we’ll be back to the ducking stool and the toss of a coin as the only available means of dispute resolution.

It’s time for some resuscitation.

Not all the patients are in a coma, I’m pleased to report.  The spirit of competence and enthusiasm seems not (yet) to have died out in Weymouth.

Years ago when forum-shopping was allowed, I took to issuing every claim I could – large numbers – out of Weymouth County Court because they were so efficient, so friendly and so helpful.

I remember going to see the chief clerk (as they then were called) to warn him that we were going to triple the volume of business we put through his office.  I wanted to be sure that this wouldn’t cause a problem.

Characteristically he shrugged, smiled and said “if we need to, we’ll bring in more staff”.  And they did. And it worked.

Sentimentally, I felt glad to see an email from Weymouth at the beginning of the week raising a query on another charging order application.  They said that they didn’t have our fee account number.  They did, as it happens, but the email enabled us to make that clear within the space of 10 minutes and the interim charging order was made later that day.

There is hope yet – provided that it’s all change at the Ministry of Injustice in three months time…

Sunday, 1 February 2015

Ministry of Injustice

As January draws to a close, it’s looking like the start of another annus horribilis for the Injustice Secretary aka The Lord Chancellor – although with any luck the curtain will come down at the latest by May.

The legal world eagerly awaits the decision of the Administrative Court in yet another judicial review of this hapless creature.  The Law Society has led a challenge to the government’s legal aid crime duty contract tender process claiming that it “creates a serious risk of market failure” that would cause major damage to the professions involved “leaving huge swathes of the country with no legal representation”.

In other news this week, we hear and read how Grayling’s incompetent ministry has managed to lose discs containing information from highly sensitive police enquiries, including those concerning the deaths of Mark Duggan and Azelle Rodney. Shadow Justice Secretary, Sadiq Khan, has branded the episode “an appalling lapse in security”.

There was something of a surprise where the politician who became branded as an “attack dog” replaced that other popular figure, his predecessor, Kenneth Clarke in 2012 having regard to his record and (lack of) credentials.

He had reportedly claimed expenses for a flat in Pimlico for eight years during the last decade, despite the fact that his constituency home was only 17 miles out of Town and he owned two other properties in Wimbledon.  The man who had previously accused labour ministers of “sleaze” had his pied-a-terre tarted up in 2005 at a cost to the public purse of more than £5,000.

In February 2010 he was responsible, as Shadow Home Secretary for claims that crime had risen sharply in the UK but the then chairman of the UK statistics authority disagreed.  He said that Grayling’s figures were “likely to mislead the public and likely to damage public trust in official statistics” as the way in which figures were calculated had been changed some years before.

Home Secretary Alan Johnson said that his counterpart’s use of the statistics was “dodgy” and insisted that crime had actually reduced significantly during the period.

It was in April the same year that Grayling had to apologise for his clumsy remarks about gay couples in B&Bs.  Little wonder that when Cameron arrived in Downing Street he appointed somebody – anybody (Theresa May) – else to the position of acting Home Secretary.

With all this background of buffoonery, you’d have thought that our hero needed to tick all the usual boxes on the CV to make the appointment to the venerable office of Lord Chancellor. 

Despite the fact that he has no legal knowledge or experience – as he amply demonstrates week in, week out – Grayling became the first non-lawyer to serve as the Lord High Chancellor of Great Britain for approximately 440 years.The last non-lawyer LC was the Earl of Shaftesbury in 1672-3.

If the Injustice Secretary loses the pending judicial review of his criminal legal aid reforms it will be nothing new. Challenged on the same subject last year by the London Criminal Courts Solicitors’ Association and the Criminal Law Solicitors’ Association he was told by the High Court that he had “acted unlawfully” by failing to disclose the existence of two key reports.

In October 2014 his decision to force successful mesothelioma sufferers to part with up to 25% of their compensation drew the conclusion that “no reasonable Lord Chancellor faced with the duty imposed on him by s48 of the Legal Aid Sentencing and Punishment of Offenders Act [the lamentable LASPO] would have considered that the exercise in fact carried out fulfilled that duty.”

Ominously, the court added that it was “not a case in which the procedural failure was minor or technical in nature.”

Weeks later his prison book ban was ruled unlawful amid further controversy about his presentation of the arguments. Commenting on Grayling’s claims about the money prisoners would be allowed to spend on books, Mr Justice Collins said “this, I am bound to say, was somewhat misleading”.

Pesky judicial review. The honourable member’s response has been to try and remove this obstacle to his dishonest and undemocratic methods by reforming the system. But it was to be a thin Christmas for the LC as he had to admit to misleading the House of Commons.

Grayling was forced to confess that during the debate at the beginning of December he had “inadvertently” suggested that judges would have discretion in exceptional cases. In a letter to a fellow Conservative MP who voted against the government he wanted to “take this opportunity to clarify that that is not the case. No such exceptional circumstances provision exists in this clause”.

Lord Pannick, who inspired the revolt by the Lord Chancellor’s party colleagues, had last year also described the ridiculous Social Action Responsibility and Heroism Bill (SARAH) as “a statement of the legally obvious”. You’d be forgiven for thinking that parliamentary time and resource was plentiful.

This weekend saw the National Association of Probation Officers reacting to proposed reforms of the system as too hasty, complaining that there had been no pilot scheme and – gosh – no consultation. A NAPO representative branded it “a political stitch-up”.

We’ve seen plenty of that in the world of personal injury litigation and the cozy huddles with the insurance industry producing draconian changes to costs, fees and procedure all aimed at reducing costs to insurers. These are justified by the perennial claims by the industry that costs – to Joe Public – will come down as a result.

Well what do you know? Again this weekend, after many of the ‘reforms’ urged on government by the liability insurers and the ABI, the news that insurance premia are set to rise by up to 10% this year. Surprise!

Perhaps the latest wheeze from the Ministry of Injustice will provide further help to its insurer friends as civil court fees are to increase again but this time by a colossal proportion. Commentators point in one example to an increase from a figure of £1315 to £8185 – which represents an eye-watering 622% hike.

There’s little doubt that this will kill off business in the county courts in much the same way as the employment tribunals have seen a decrease of near 80% in claims over the last 18 months since the introduction of fees that were not just a novelty but vastly disproportionate to the value of the majority of claims.

Little wonder that a survey last month revealed that 82% of lawyers would be more likely to vote Conservative in May if Grayling were given the boot.

The overwhelming explanation for this is not self-interest but a deep sense of responsibility for our justice system, a kingpin of the democratic state and for centuries the envy of the civilized world. It’s in stark contrast to the outlook of the person who, bewilderingly, sits at the helm.

The stupefying hubris of the man is demonstrated by reaction to defeat. Change the rules – get rid of them even. If he remains in office, his next high-profile victim will be the Human Rights Act. Be afraid.

It’s reminiscent of the recent initiative from the English Spelling Society to dumb the language down to make it easier for people to get things right. If what I see regularly (often from court offices) is any clue, we’re wasting our time worrying about the odd silent aitch here and there.

Sure, often we could do with more lateral thinking in solving problems but where we’re talking about our rule of law, if not our language, standards need to be maintained.

Raise the game, don’t lower the bar. These are not transient values.

Money is not more important than the rule of law but this Justice Secretary doesn’t get that. MOJ private secretary Ursula Brennan confessed to the Public Accounts Committee in December that pressure from the government to cut costs made it “not possible to do research” – because “the government was explicit it needed to make these changes swiftly”.

It’s only access to justice after all and we needed to save £300 million. Remind me – how much is the national deficit?

Perhaps the crowning glory (so far) for the Ministry of Injustice came this weekend (yes, yet another) with the revelation that it is publishing ‘guidance’ to defendants to criminal prosecutions who have learning difficulties in ‘easy read’ terms that “if you say you did not do the crime you may have to go back to court on a different day to show the court you did not do the crime.”

So, now he’s actually reversed the burden of proof. Guilty until and unless you prove yourself innocent. Good luck with that, on your own, without legal representation. If you need an interpreter, you’re really sunk.

Solicitor Hilary Meredith was quoted last month as describing Grayling as “the most inept justice secretary in living memory”. Far beyond, I’d say.

Grayling’s answer to his critics? Well, he claims it’s an advantage not to have any legal background. He says it means he isn’t “cup-tied” in any way, whatever that is supposed to mean. He thinks that knowing nothing about the law somehow helps him to be a better Lord Chancellor.

Of course it does..