The judiciary must ‘come off the bench’ and speak out about the ‘parlous state of family law in 2009’, Lord Justice Wall has said. Speaking at the Association of Lawyers for Children conference, the Court of Appeal judge said ‘the time has come when the historical and indeed instinctive judicial reluctance to go public over matters properly within our sphere of activity must come to an end’. He added: ‘We must say what we think, and if we feel that the exercise of our proper functions is being impeded by anyone or anything, we should say so, loud and clear, and in plain language.’ Wall said the family justice system was made up of ‘conscientious individuals who are doing their best for the children they serve, often – indeed commonly – with wholly inadequate resources’. He added: ‘Family practitioners have striven to cut costs and delays. We have pared ourselves to the bone… Government must realise that, if it fails to properly fund the system, there will undoubtedly be greater delays, poorer justice, too few judges, and many litigants in person left to struggle on their own. ‘If you double the workload but leave the number of judges and sitting days the same, delays will increase… It is the children who will suffer.’ Wall noted that the senior judiciary had a detailed knowledge of family justice. He added: ‘By contrast, I have to say, I have lost count of the junior ministers in the various departments dealing with children since I began to practise in 1969. ‘And how many of them, I ask rhetorically, have ever actually practised family law or know anything about the stresses and strains of practice? ‘Even now, while practitioners recognise the interdisciplinary nature of family justice and legislate by good practice for cooperation between its various strands, legislative provision for children remains divided between different departments of state.’ Wall added that the judiciary does not ‘engage in politics’ or ‘score political points’. He said: ‘We adhere to the fiction that parliament controls the executive, even though we know that in reality it is the other way round.’ Wall noted that in voicing his concerns he was following the lead of Sir Mark Potter, president of the family division, who was not afraid of ‘coming off the bench and speaking his mind’.
The same Gazette carries the story on page 4 ‘Serial litigants outcry’ reporting on an early day motion signed by 40 MPs condemning a website set up by an employment lawyer to identify serial litigants (also commented on by the editor on page 8). Am I alone in thinking that there may be a touch of hypocrisy here? Peter Evans, Hugh James Solicitors, Cardiff
The ‘catastrophic impact’ of the government’s proposed legal aid cuts could leave 50% of firms doing publicly funded work at risk of closure, according to research commissioned by the Law Society, seen exclusively by the Gazette. Consultants Andrew Otterburn and Vicky Ling surveyed 163 civil and criminal law firms to assess the potential impact of the Ministry of Justice proposals, which will cut fee rates and remove large areas of civil work from scope. The study found that the removal of work from the scope of legal aid will have a ‘catastrophic impact’ on firms. In particular, firms that undertake large volumes of family or Crown court work, or specialise in areas of civil work such as housing, immigration or clinical negligence, will find the impact of the proposals ‘unsustainable’. ‘Many suppliers will not survive the withdrawal of scope and risk closure,’ said the report. It also found that the reduction in fee levels will weaken firms currently struggling due to the recession, and further squeeze tight profit margins. The study calculated the impact of the reforms on profits per partner (PPP), after allowing for a notional salary based on the wages of the highest-earning employee, plus 10%. On average, the study found that PPP will fall from around £27,000 (plus a notional salary of £49,500) to £11,000 after the rate cuts, leading to a £48,000 loss after the removal of work from scope. The consultants calculated that firms would need to reduce their payroll costs by 40% to retain their current levels of profitability. This would mean funding ‘significant redundancy liabilities’. As with other sectors, the report found that the last three years had been ‘extremely difficult’ for firms, and most have seen profits fall, partner capital depleted, and have made redundancies. The study showed that median capital was just under £69,000 per partner, and the median bank balance was an overdraft of £2,000 per partner. The median profit was £27,000, but a quarter of firms are barely covering the salaries of equity partners. Otterburn said: ‘We may see a 50% reduction in the supplier base [if the proposals go ahead] and an end to the large firm model because the volume of work, except in public law family and crime, will no longer exist.’ He advised firms to start scaling back their operations now, and to begin reducing their capacity and payroll in a controlled way. He said firms should also try to diversify out of legal aid, and take advice to protect their personal assets, particularly if they are still partnerships with unlimited liability. The research did not take into account the likely impact of the proposed increase in telephone advice work, which is expected to reduce civil work even further. See the full report.
So when is the government going to publish its Justice Bill, containing the legal aid reforms, Jackson proposals on civil litigation funding and sentencing reforms? This is the question to which everyone wants an answer. Speculation on the date has been rife, with dates suggested from the end of May, 8 June, 15 June and 20 June. Sources close to justice secretary Kenneth Clarke indicated to the Gazette last week that the bill has to be laid by 16 June at the latest in order for it to get through parliament in the current session. However, the widespread reports today that Clarke may have to shelve key planks of his proposed sentencing reforms, has prompted speculation that the bill will be delayed by some weeks. As reported in the Gazette last week, it appears that proposals to save £130 million by reducing the prison population are to be dropped. Clarke had proposed that defendants would get a 50% reduction in their prison sentence if they entered a guilty plea at the earliest opportunity. But following a backlash from some sections of the media over Clarke’s comments on rape, and opposition to the proposals from some Tory MPs, it seems that the prime minister David Cameron has intervened to ask the Ministry of Justice to go back to the drawing board on the plan. The MoJ is giving nothing away. It will not comment on what will or will not be in the bill, or on speculation in the media. When asked for an indication of when the bill will be published, the MoJ replies over the last couple of weeks have been ‘in due course’ and ‘shortly’. Today, the most that a spokesman would say was that ‘publication is expected in the next few weeks’. The Home Office said the bill and its timing was a matter for the MoJ, even though home secretary Teresa May had given briefings on sentencing reform this morning, and was reported to have said that the bill has been delayed. Number 10 would neither confirm nor deny the prime minister’s involvement in the process, or that the sentencing proposals are to be amended. All its spokeswoman would say was that the government had consulted on ‘proposals’ set out in the green paper, and a policy announcement will be made in due course. What seems to be clear is that things are definitely up in the air, and the various government departments themselves do not seem to know what the situation is. Reading between the lines from the scraps of information being dragged out of government spokespeople, and piecing together the morsels gathered from our sources, it appears that the MoJ is keen to get the bill out there as soon as possible. That’s because if the MoJ cannot find the £130m savings it had planned to from its sentencing reforms (because it was overruled by Downing Street), it wants the Treasury to stump up the cash instead. The MoJ does not want the bill to be pushed back until it comes up with an alternative savings plan. Instead it wants to use the imminent publication of the bill as leverage to encourage the Treasury to cough up. Or so some experts believe. The Treasury would not comment on whether it had been approached for assistance from the MoJ, but a spokeswoman said it will ‘not be reopening the settlement in the spending review’. What does this mean for legal aid lawyers? Well, if Clarke can persuade the Treasury to bail him out, he may not need to look to the legal aid budget, which is already facing a £350m cut, to find further savings. So, perhaps legal aid lawyers should hope that the bill is published as soon as possible. A delay might imply that Clarke has been unable to do a deal with the purse holders, and has to find further savings. And no doubt the legal aid pot would seem one of the most likely for him to raid.
Gimlet-eyed multi-millionaires look on sceptically as you launch into your business pitch. Pulse tripping, you contemplate the excruciating embarrassment of freezing before the cameras and unseen millions gawping at their TV screens. Or maybe you manage to limp through to the end of your presentation only to hear your ambitions sneeringly dismissed by some slick-suited entrepreneur. Yes, Obiter has always savoured the sadistic delights of BBC’s Dragons’ Den, the programme where new businesses are given seed capital by already successful business people – or are shot down, ignominiously, in flames. North-west firm Hugh Joseph McCarthy chose to put itself through this torture to raise money for the Royal Manchester Children’s Hospital Charity. The solicitors had to strut their stuff before stationery and ladies’ lingerie supremo Theo Paphitis, one of the dragons on the programme. Employment solicitor Helen Harradine told him that the firm had given 30 minutes’ free employment advice to clients and then invited them to make a donation to the charity. Harradine said: ‘Raising money was the easy bit. It was the presentation to a dragon that was scary. I do amateur drama, but this was much worse. We caused some amusement by claiming that not all lawyers are heartless.’
The Solicitors Regulation Authority has added two extra days to the time allowed for renewing practising certificates – but stated this will be the last extension. The renewals process, due to finish the end of this month, will now close at 5pm on 2 March. The SRA has been beset by difficulties caused by the new mySRA online renewal system but said today this date will be the ‘final deadline’. The authority repeated its ‘sincere apologies’ to solicitors who have struggled to access the new system and advised anyone who believes they won’t make the 2 March deadline to call its contact centre. The postponement of the closure date for online renewals means other regulatory deadlines have had to be moved back. The process of registering compliance officers for legal practice (COLPs) and compliance officers for finance and administration (COFAs) – nominations for which were supposed to be in at the end of March – will take place later than planned, the SRA said. The process to update the roll of all solicitors in England and Wales will also be delayed.
Justice secretary Kenneth Clarke opined this week that he did not know ‘why’ legal aid was so expensive. Considering ‘if’ it is expensive would be a more pertinent point. By most measures in a western economy the healthy balance between private and public is about 60:40 – a ratio that is sustainable and arguably desirable. Yet the £19bn legal economy is radically skewed towards the private. In round terms, legal aid, the largest line item in that spend, is just 10% of that figure. The £29m spent on legal fees through the government’s central panel, and the £106m spent by local authorities, pushes the figure to the heady heights of just over 11% of the legal economy. That reaches maybe 14-15% when you include the 2,000 lawyers working across the Government Legal Service. The message from this is clear – the public element of the legal economy is, in military parlance, already ‘running hot’. In common with areas such as higher education, individuals are already doing more with less, and, in many instances, clearly pricing what they do below the market rate for their individual or corporate services. This thought does not seem to have crossed Mr Clarke’s mind.
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Get your free guest access SIGN UP TODAY Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community