Leal Aid cuts put into doubt by court ruling

The government’s plans for introducing £220 criminal legal aid cuts have been put on hold following a high court ruling in which it was held that the Ministry of Justice consultation process was illegal due to its unfairness. The decision is a major setback for the justice secretary, Chris Grayling who was heading the negotiations between the government and the legal profession which resolved in a 17.5% cut in fees as well as the reduction in the number of contract solicitors on duty to attend police stations and court hearings.

The process was said to be “so unfair as to amount to illegality” by Mr Justice Burnett. He said that the government had refused to allow those engaged in the process to comment on the reports by accounting firms KPMG and Otterburn, which provided the foundation for deciding how many contracts for criminal advisory work would be available to solicitors’ firms.

The Ministry of Justice will now consider the judgment and seek advice on whether it is now requires to rerun the consultation process to a satisfactory and above board level. A royal commission is to be sought to examine the funding to access to justice by the  Criminal Law Solicitors’ Association (CLSA) and the London Criminal Courts Solicitors’ Association, which brought the judicial review challenge in the instance.

Chairman of the CLSA Bill Waddington had previously requested documents prior to the courts ruling. He stated that failure to provide such documents had reduced dramatically the number of firms able to apply for duty contracts, without the profession being given any chance to comment upon the assumptions outlined in the reports.

Mr Waddington said that this “is a damming indictment of the lord chancellor, Chris Grayling. The head of our world-renowned justice system must act fairly, instead he has attempted to enact a plan that is manifestly unfair. Limiting access to justice and shredding the treasured principle of equality before the law”. He continued by saying that at a time  “when constitutional change is in the air, the right of citizens to defend themselves against state-funded prosecutions is not something that should be manipulated in a political way, but investigated impartially to appropriate savings and reforms that are sustainable and in the public interest.”

A spokesman for the Minitsry of Justice commented that the “judicial review was not wholly successful – the claimants failed in their challenge to the fee cut”.


Secret hearing to decide on MPs spying

The most secretive court in Britain is to stage a one of a kind public hearing in order to determine whether there is any legality behind the historic political doctrine that the British intelligence services are not permitted to intercept e-mails and phone conversations of members of parliament. The agreement to stage a hearing by the Investigatory Powers Tribunal comes after two MPs from the Green part; Caroline Lucas and Lady Jones, made complaints following leaked disclosures by Edwards Snowden made it obvious that GCHQ were monitoring and intercepting their communications which is contrary to the Wilson Doctrine.

Counsel for MI5, MI6 and GCHQ, Kate Granger told the Tribunal that her clients wanted to exercise their right for the hearing to take place behind closed doors without the public or media having access to the procedure. She justified this request by saying “it may well be that we would want to say something in closed about the past policy or practice in relation to the Wilson Doctrine”.

The doctrine dates back to former Prime Minister Harold Wilson who in 1966 made a pledge that peers and MPs would not have their phones tapped. Further, in 1997 the then Labour Prime Minister Tony Blair stated that the doctrine would extend to e-mails as well as other types of electronic communication. The power to keep the policy remains with all subsequent Prime Ministers who must inform other MPs of any changes should they wish to make such. The two complainant MPs however argue that the Wilson Doctrine must be enforced in the legal system and said that the large scale interception by GCHQ must be unlawful.

Mr Justice Burton, who is the president of the tribunal stated that he firstly wished to provide a judgement on the legality of the doctrine and whether it had any force in law. He continued to say that if the outcome was that the doctrine did not carry with it any legal force then the Tribunal will proceed to make the “usual inquiries” of the relevant agencies in order to provide a judgment on whether the MPs communications had indeed been bugged.

Mr Justice Burton rejected the proposal of the security agencies to hold parts of the hearing behind closed doors on the ground that it would spark criticism of the Tribunal itself. However, Mr Burton refused to grant the lawyers representing the two MPs with a copy of the orders which were granted to the agencies following the lodged complaint.

The impact of E-data on business law

The way business approaches litigation has changed enormously over the past decade due to the growth of electronically stored information.

New costs are experienced for data management and some cases are being settled for a shorter amount of time. Both businesses and law firms now have legal e-discovery departments and hire individuals with strong information technology abilities.  Even opposing parties are cooperating more during the early stages of litigation, but simultaneously courts are imposing severe sanctions for those fail to preserve or produce information.

People witness document collection to be transformed from warehouse search for paper to gathering of e-mails and figuring out how to produce it. Therefore, businesses and law firms need individuals with a special set of skills to deal with ESI. Since the cost of e-discovery is the primary drive of the costs of litigation, there has been noted an increase in the willingness of clients to settle. However, it is important to note that if a client spoils e-discovery, regardless of the merits, the case can be lost. Courts are becoming more and more willing to allow some severe relief. Sanctions vary from tough ones, such as case dismissal, default judgment and financial penalties, to more moderate, such as adverse jury instructions and evidence preclusion.

Lawyers had to find new ways to manage the arrival of documents due to the sheer volume of information. Thus, e-discovery has become a specialty and it is vital that lawyers develop and interest and ability to understand technology which differentiates from being a traditional litigator. Now more cooperation among parties can be observed, as well as transparency and desire for proportionality. Also, businesses simply cannot keep everything because storage costs go out of control.

Thus, the growth of ESI has led to the creation of new departments and positions to manage the intersection of law, business and IT. If the e-discovery does not have one person in charge of supervising all the parties involved, timelines will be missed which will cause further costs.

The process of e-discovery itself is in phases and each phase requires corresponding technological tools. The key is the formulation of a strategy and incorporating the use of data analytics and technology to reduce collection and cost.

Algorithms, statistics, key words, e-mail threading, data sampling, and predictive coding help businesses and law firms achieve these goals. Thus, the most cost-efficient e-discovery cases are those that apply a consistent strategy from start to finish.

Levi Bellfield succeeds with injury claim against the Ministry of Defence

Levi Bellfield the man who was found guilty for the murder of schoolgirl Milly Dowler has been paid out an award of £4,500 as damages to compensate him for his injuries following an assault by a cellmate which occurred in prison. Mr Bellfield brought an injury claim against the Ministry of Justice who were critical of the decision reached by the judge by labelling it as “hugely” disappointing.

Levi Bellfield who was at the time in Wakefield prison was attached by another man at the prison with a weapon that was made within the establishment. The injuries are believed to be minor with no serious damage being inflicted. This is to some extent confirmed by the £4,500 award of damages which in legal cases reflects only those least severe injuries. The incident took place in 2009 when at the time Mr Bellfield was awaiting trial for the murder of a schoolgirl.

Reports in the Daily Mirror disclosed information that the inmate brought legal proceedings against staff at the prison based on the fact that they should have protected him and that they were negligent in fulfilling this duty. The controversial claim was fiercely defended by the Ministry of Justice who incurred a much more substantial legal bill fighting the case than the compensation they were eventually required to pay. The defence prolonged for three years before a judge in Durham county court finally ruled that the Ministry must take responsibility and be held accountable for its negligent conduct in failing to protect the prisoner.

A statement was released by a spokesman on behalf of the Ministry of Justice in which he expressed the moral defeat which is alike felt by many across the country. “We are hugely disappointed that Levi Bellfield was awarded £4,500 by a judge following an assault by a prisoner in 2009 at HMP Wakefield.” The decision is one which puts into question the law relating to prison claims and whether it is right for a murdered to be compensated for minor injuries which he sustained during incarceration.

Many across the political spectrum shared the Ministry’s disappointment. Amount those was Ian Austin the Labour MP who is also a member of the panel of the home affairs select committee. In an interview with a national newspaper he said that the decision was “a complete and utter disgrace”. He further went on to say that every right-thinking person will see the decision that a murdered being awarded compensation is wrong and “distasteful”. Mr Bellfield is now serving two whole-life sentences for the murder of three school girls and the attempted murder of one.  w

Partnership Tax Changes will be introduced by HMRC

The plan is that changes will be made in order to deal with alleged tax avoidance by limited liability partnerships. The HM Revenue & Customs has verified that the measures should come in power on 6th of April 2014 even though there have been protests from the legal profession and the City.

This month a revised technical note and guidance on the so called “Salaried members rules” have appeared on the website of HMRC. These rules aim at preventing the misuse of LLP status by ‘disguised employees’.

The planned changes have immediately been criticized by the Law Society who claimed that those measures threat LLPs as simple tax avoidance schemes, without acknowledging their legitimate business commitments. HMRC has been warned that if this initiative is really implemented it may cost the UK revenue because it will encourage firms to move away from partnership structures and even out of the UK.

However, tax experts say that the revised rules seem to have taken into consideration some concerns that have been raised before. HMRC had eased its requirements for one of the tests of genuine partnership. In particular, this is the one of capital contribution to the business.

Even though some see the new rules as a small step in the right direction, firms have to act immediately in order to evaluate how these changes will affect them directly.

Some believe that to a certain extent, the rules have been clarified with given useful examples. Now it should be easier for true partner to keep their self-employed status.

Many firms have been waiting for the revised rules and now there is little time until the new regime gets in force, so it is better if they start the assessment of the affects as soon as possible.

New Patents Court in Scotland

Recently there has emerged a problematic situation among the intellectual property area. Intellectual property lawyers in Scotland have been alarmed by the possibility of having to litigate through the courts that are based in England under the new Unitary Patent Court system.

Currently, there is an Intellectual Property Bill going through the UK Parliament and thus, it creates this system.

However, Scottish members of the Law Society are encouraging MPs in the UK Parliament to make sure that Scottish inventors and businesses would continue to enforce intellectual property rights in a Scottish court. The other option that is being proposed is this to happen in one of the four local divisions of the new court, all of them being away from the border.


Currently, the Court of Session is the place to go to if you are an inventor or a business who wants to litigate in Scotland. Therefore, a recommendation has been made for an amendment in legislation which will allow the three separate legal jurisdictions in the UK, respectively England and Wales, Northern Ireland and Scotland, to have a patent court under the new system.

One of the members of the intellectual property committee of the Law Society of Scotland has said that there might be devastating effects on Scottish businesses if the legislation fails to secure a local divisional patent court in Scotland. Scottish businesses need to have an efficient local alternative to which they can turn to and rely on to protect their patent rights. Otherwise, they will have to litigate or defend themselves and their stance somewhere else in the United Kingdom or Europe.

One MP has stated that Scotland will bear its consequences if it cannot manage to solve its own patent problems.

If Scottish businesses have to defend themselves and litigate outside of Scotland in different jurisdictions, this means that they will have to go through various additional costs and inconveniences. Furthermore, this will deprive Scotland from all its experience in applying Scottish law for the resolution of cases. A support for an European wide Unified patent Court should not be in an expense of Scotland itself. The Intellectual Property Bill is going to a committee in the House of Commons in January 2014.



Employment Claims Drop

Employment related claims against employer’s such as unfair dismissal has almost halved with figures showing that there has been a drop in such claims by 55%. This fall in the number of claims is said to be due to the introduction of the tribunal fees of last summer according to many law firms. They beleive the sharp drop of claims brought is a reflection of the  charges which are imposed for the applications and attending a hearing. It is also believed that the decline is a reflection of the surge of claims which were filed in order to beat the fee introduction.

If you wish to bring a claim the standard fee for lodging the claim is £160 and £260 for a tribunal hearing regarding basic claims. There are however a set of higher fees which have been introduced for employed who wish to challenge their dismissal on the ground of unfair dismissal, racial or sexual discrimination in the work place as well as whistleblowing. Such claims face a charge of £250 to file a claim and a staggering £950 in order for the hearing to take place.

The Ministry of Justice believe that the Employment Tribunal Service charges are due to save millions of pounds a year. This is however disputed by Unison who launched a judicial review procedure which challenges the legality of the charges which is set to be resolved by a judgement by the high court.

Head of employment law at specialist law firm Hugh James, Emma Burns, stated that there is currently a great level of uncertainty as to the extent of the legality of the fees introduced. The result of a judgement pronounce the fees ultra vires (unlawful) is likely to be followed by a wave of employment claims of ex-employees pursuing claims against their employers.

Prolonged work related disputes can have detrimental financial effect on both the worker and the employer court fees and legal representation often staggers up to astronomical amounts pretty quickly. The introduction of the fees are even more of a reason for employers and ex-employees to reconsider and think carefully prior to launching a claim of whether the risk justifies that pursued cause. Figures released by the Ministry of Justice reveal that the number of claims accepted by the Employment Tribunal Service dropped by 55% in August down from 17,153 in July.

TV Pundit loses age discrimination case

Legendary racing pundit John McCririck was given his “pantomime persona” as the reason for his dismissal from broadcaster Channel 4 due to the fact that it was “unpalatable” to a nationwide audience. An employment tribunal stated that this was a sufficient and just reason for the dismissal of the 73-year-old horse racing pundit.

An employment panel gave a unanimous decision against Mr McCririck who alleged that he had been given the sack following an astonishing 29 year long career in television due to his old age. The employment tribunal however favoured the argument put forward by Channel 4 who argued that the sacking was part of a wider plan to introduce horse racing to a wider more diverse audience.

The applicant in this case, Mr McCririck stated that this decision and the reasoning behind it showed a “historic setback” for those over 30 who wish to lodge claims for unfair dismissal based on age discrimination. The racing pundit earlier in the year took TV production company IMG Media Limited as well as Channel 4 to the tribunal while seeking to be compensated in the sum of £3m for the damages caused. Both parties denied and defended the allegations of discrimination. As expected both Channel 4 and IMG welcomed the decision reached by the e Central London Employment Tribunal.

While at the forefront of Channel 4′s racing coverage the racing pundit became famous with his attire consisting of gold jewellery, deer-stalker hats and wild gesticulations. On later TV appearances such as Wife Swap and Big Brother Mr McCririck confessed to his “pantomime villain” appearance. The aging pundit was replaced by a revamped team headed by Clare Balding when Channel 4 obtained broadcasting rights for horse racing in March 2012.

In the report the tribunal panel concluded that having obtained rights to broad cast Royal Ascot and the Grand National which are considered to be the crown jewels of the sport, it was evident why the broadcaster wanted to appeal to a younger audience  while maintaining its existent over 55 male audients.

The tribunal went on to state that Mr McCririck’s celebrity profile had increased after airing his personal views on matters which were previously not known to the public. The report referred to the pundit being asked to leave other well-known TV programmes such as Hell’s Kitchen, Alan Titchmarsh, and Loose Women, following the publication of his views.

Regulation makes it costly to run a media business

Some of the nation’s most respected newspaper and publisher groups have threatened to lodge a European legal challenge if the government penalises them if they fail to sign up to the royal charter backed regulation on the press. The papers fear that this is likely to increase legal costs in privacy and libel court action if the government does not allow self-regulation and insists on the royal charter standard of media regulation.  

The law has been already inserted in to section 20 of the Crime and Courts Act and means that magazines and newspapers will be unable to recoup their legal fees even if they are to win in their high court cases unless they have gone through a process of arbitration with a unit approved by the regulator. In the larger more complex cases there are likely to be other legal fees incurred such as punitive and exemplary damages in addition to the libel damages.

This effect of the proposed regulation is threatening for the business of the media groups since they are already faced with hefty legal burdens in the region of £500,000 to £1,000,000 for those prolonged libel disputed. The newspapers have made no secret of their concern which in their eyes will have a “chilling effect” on journalism across the board. The changes are likely to mean that there is more safety in publishing with sources being checked thoroughly and some articles remaining unpublished.

Insiders in the press business say that if the proposals regarding exemplary damages and legal costs are not reconsidered and revised, they are likely to lodge a challenge on the government’s proposed regulation with the European Court of Human Rights. A newspaper executive stated that the action would signify the little choice which the newspapers are left with the legal costs being so hefty and out of proportion that they would simply be unbearable.

Deep disappointment has already been expressed by the Sun, Daily Main and the Telegraph who have all had proposals turned down by the government. Stig Abell, the managing editor of the Sun, stated that the government’s latest refusal of the regulation proposal has given them one final push for negotiation which could either end up in the press setting up its own regulation system which does not get government approval or a government backed regulator to which no paper signs up. Essentially the argument is one of business with the proposed penalties for not signing up to the royal charter possibly leading to intolerable trading conditions with little room for the maintenance of a sustainable business.




Data Protection and Businesses

In the increasingly digitised and electronic 21st Century, information assurance and protection has become increasingly important.

As more and more information is uploaded, stored and accessed online, more and more sensitive information is in cyberspace. Exposure of such information can compromise a person’s personal details, financial details, medical records, or business records. Such information can be very sensitive. The risk of such information getting into the wrong hands can lead to identity theft, fraud, or industrial espionage. As more sophisticated criminals and gangs are now moving online and exploiting weaknesses in business networks, the risk of such information being found and exploited by criminals is very real indeed.

Measures have been implemented over the last decade to fight such online cyber-crime. Many nations have implemented legislation (for example, in the UK the Data Protection Act) to address this very matter, and have set out regulations to be followed by businesses to protect their information. At a government level, governmental groups and committees, and intelligence agencies such GCHQ seek, provide (and act on) information in this new arena.

For businesses, such regulations and legislations can be seen to be procedural, bureaucratic and administrative headache- but can potentially be vital to the safety of the business. Proper safeguards and above all employee awareness and training are essential in preventing online information from being accessed by an outside party, or leaving their particular network open to cyber criminals by carelessness or negligence. It is vital that employees receive adequate training in areas such as handling and storing digital information correctly, keeping sensitive records and databases secure, and processing online payments.

Another point here concerns customers and clients. Particularly of concern for direct customer facing businesses (such as in the service industries) is the need to keep customer information and financial details secure. Once again, staff awareness and training, and proper procedures and due diligence are needed in such industries to prevent the theft of customer data. Under legislation, it is actually a requirement of businesses to implement a secure system to store customer information.

For some businesses, the threat of cyber-attacks is very real indeed. For technology and pharmaceutical, industries, for example, industrial espionage is very much a concern, and one that can cost a company potentially millions in stolen intellectual property.

Although good digital working practices and procedures can be laborious and time consuming- such measures can be vital in protecting a company. Digital theft can result in sensitive information being out in the open, a great loss in revenue, and an even greater loss in revenue. Although laborious, a comprehensive and secure IT infrastructure and set of working practices can be invaluable for any business.