Combine the power of the web and a very grumpy judge and you get cracking reads, as we journalists say. Judge Gledhill QC’s public dressing down of three solicitor-advocates led to solicitors storming the Gazette’s website – the article was by a huge margin the most-read and most-commented-on online piece in the past four weeks, doing more than twice as well as the nearest news story and pulling in thousands of readers. If one includes those reading and commenting on the articles that followed in its wake, the issue has dominated the Gazette’s online readership figures. One of Judge Gledhill’s complaints was that a solicitor-advocate had directly addressed the jury. Obiter wonders if the courts are just getting narked about solicitors wearing wigs in court, which must confuse the heck out of the bench and their learned friends on the floor. Perhaps solicitor-advocates should do even more to get attention in court – they must be tired of being mistaken for the usher – and adopting the horsehair lid is the best way of doing that. But for good or ill, everyone has garnered plenty of attention now.
Peter Steer, Wilsons, Salisbury I was disappointed to read Michael Loveridge’s response to my comments about executors potentially being liable to beneficiaries for losses caused by delay (see  Gazette, 2 July, 10). I hope he will not carry through his suggestion of advising his clients against making charitable bequests. Sometimes a loss can arise because of negligence or a breach of duty by the executor. If this happens, and particularly if the executor is acting professionally and has charged a significant fee, surely it would be surprising (not to mention a potential breach of its own legal duties) if the charity took no action to recover such losses. In my experience, charities do not expect anything more than their proper entitlement, but it seems harsh to force them to accept less.
HIP save 165 190 195 224 320 HIP2SELL 249 286 249 286 Cost of HIP (£) Absolute HIP 290 334 310 357 Cost of HIP (£) thehipsolution.com 225 259 240 276 Promise homepacks 179 206 209 240 ESTATE AGENTS’ AVERAGE Incl. VAT (£) 368 LEASEHOLD Home information packs (HIPs) purchased from estate agents can cost 50% more than those bought directly from specialist HIP providers such as law firms and conveyancing practices, new research indicates. On average, HIPs from estate agents cost about £110 more than HIPs from specialist providers, according to a survey by consumer organisation Which? Money. For a three-bedroom, freehold semi-detached property, the cheapest specialist HIP provider, Fridays Property Lawyers, charged £189 – £224 less than the £413 charged by most expensive estate agent, Halifax. For a two-bedroom leasehold flat, specialist HIP provider Hip Save charged £224 – £292 less than the £516 charged by the most expensive estate agent, Spicerhaart. Direct providers tended to offer the cheapest HIPs, but prices between them varied by as much as £191. Which? Money surveyed some of the largest estate agencies and a selection of specialist HIP providers on what they charge for a standard HIP for a three-bedroom freehold semi and a two-bedroom leasehold flat in Balham, London. Which? Money said that the vast majority of HIP providers and estate agents have fixed fees for properties, which are not dependent on size, value or location. Click HIPS 210 242 250 288 FREEHOLD DIRECT HIP PROVIDERS 395 Fridays property lawyers 164 189 199 229 Economy HIP 198 228 228 262 221 Incl. VAT (£) hiphiphorray.com 330 380 360 414 HIP PROVIDERS’ AVERAGE 254 Anglia Home Surveys 197 227 217 250 Savills(A) 254 292 254 292 Sequence Group (B) 299 344 299 344 Foxtons 299 344 299 344 Andrews(C) 299 344 299 344 Connells(D) 349 401 349 401 Countrywide 349 401 399 459 Spicerhaart 349 401 449 516 Halifax 359 413 398 458 ESTATE AGENTS 246 283 343
A former solicitor from Warrington has been jailed after admitting stealing more than £38,000 of client money.Martin John Davy, 47, was sentenced to 32 months in prison at Manchester Crown Court last week after he pleaded guilty to eight charges of theft and two of false accounting. The court heard that former personal injury lawyer Davy stole money from clients at two different law firms were he had been employed, and used false accounting to try to cover up cases he had mishandled. Davy’s criminal activities began after he lost his position as a partner at city centre firm JMW, following his negligent mishandling of some personal injury cases. He began stealing from clients when he was employed as an assistant at Rupert Wood & Son in Ashton under Lyne, and continued after moving to be an associate at Geoffrey Lucas in Didsbury. Davy was struck off in March after admitting a series of dishonest acts to the Solicitors Disciplinary Tribunal, which formed the basis of the criminal prosecution. Some of the money stolen came from compensation awarded to a survivor of child abuse and, according to the SDT’s findings, was used to decorate his house. Shaun Draycott, partner at Manchester firm Draycott Browne, who represented Davy, declined to comment on his client’s behalf. Rupert Wood & Co declined to comment. Geoffrey Lucas has ceased trading.
Obiter extends its congratulations to the team of students from St Peter’s School in Bournemouth, who came 11th out of 30 in the recent Empire Mock Trial Competition in New York. The trip was sponsored by the Bournemouth & District Law Society.
Off Message is published by Profile Books, priced at £16.99. Obiter lives in hope, and likes to think that all legal aid advisers do too, but it can be important to make a few cursory preparations for disappointment. So in the unlikely event that parliament fails to completely eviscerate the more noxious clauses of the Justice Bill relating to civil legal aid provision, a plan is needed. Inspiration comes from Obiter friend, former MP and lawyer Bob Marshall-Andrews, who has written a feisty memoir about his experience of the last government, Off Message: the complete guide to political humbug. In his chapter on ‘Liberty and Terror’, Bob recalls his successful efforts with Vera Baird, later solicitor general, supported by the Law Society and other right-thinking folk (RTF), to oppose government attempts to remove the right to trial by jury. They were less lucky on other provisions though. ‘As the House adjourned and its members disappeared into the night, Vera Baird, Brian Sedgemore and I drank wearily together in the Pugin Room overlooking the Thames… flattened by anticlimax. ‘The fundamentals of jury trial remained unaltered, but vast tracts of the repressive legislation had been passed. We managed, I think, two bottles of the House of Commons’ best.’ With friend-Bob and Vera back on civvy street, it’s ages since Obiter had a few wines in the Pugin Room. So there it is – Plan B for RTFs all ready. Just in case.
Follow Rachel on Twitter The CJC working group’s analysis of the options for implementing Jackson’s reforms to proportionality, Part 36 offers and QOCs will be covered in more depth in the next issue of Litigation Funding magazine. Last Monday, a group of leading experts in civil justice – many of them solicitors – gathered for a comprehensive discussion on some of the crucial detail concerning the rules required to implement Lord Justice Jackson’s radical reform of civil litigation costs. With the reforms on course to be introduced next year, despite vocal opposition from claimants, there are still plenty of battles to be fought between claimants and defendants on the detail. The meeting, also attended by justice minister Jonathan Djanogly and Ministry of Justice civil servants, discussed a 102-page document drawn up by the Civil Justice Council’s working party on the costs aspects of the reforms. The tome, which is surprisingly readable, represents the many hours spent by the working party – comprising some of the most talented and experienced practitioners in the field of costs – in analysing and weighing up how the reforms might best work in practice. But before the experts could get stuck into their discussions, they were given a written outline of Lord Justice Jackson’s own comments on the document, which have also been published on the judiciary’s website. He may not have been present, but his influence was still felt. Jackson warned against any ‘elaborate practice note’ seeking to implement his proportionality rule. He also suggested that a few ‘robust Court of Appeal decisions’ would be needed to deal with the points raised – no prizes for guessing who’ll be sitting on the bench. The Court of Appeal judge clearly still has much to contribute to the implementation of the reforms. But his influence should not overpower that of the experts on the ground who have spent much time poring over the detail of the proposals, and have an invaluable understanding of the more subtle effects of the various options for implementation, and their impact on their clients or businesses. While the judge’s intervention may have caused some consternation among those present at the meeting, a source of greater concern for some was the MoJ’s plans to introduce a means test to be eligible for qualified one-way costs shifting (a system put forward by Jackson designed to protect personal injury claimants from having to pay costs if they lose in most cases). One option being considered by the MoJ is the exclusion of higher income tax payers from QOCs; though that would not appear to tally with Jackson’s original suggestion that only the ‘conspicuously wealthy’ should be excluded. Another worry from the claimants’ perspective is a further MoJ plan to introduce some kind of minimum payment by claimants where QOCs applies, possibly linked to income. Both MoJ proposals met with strong opposition from the claimant side last week; though whether they have succeeded in convincing the minister remains to be seen.
UG (Nepal) v Entry Clearance Officer; NT (Nepal) and another v Entry Clearance Officer; YP (Nepal) v Entry Clearance Officer: CA (Civ Div) (Lady Justice Arden, Lord Justices Sullivan and Tomlinson): 2 February 2012 Leave to enter – Indefinite leave – Spouses, children and other dependant relatives – Appellants being refused leave to enter UK Richard Drabble QC, Christian Howells and Rebecca Stickler (instructed by NC Brothers & Co) for the appellants; Gerard Clarke (instructed by the Treasury Solicitor) for the ECO. The instant proceedings concerned three separate appeals which were heard together because they raised similar issues. In each case, the appellant was the adult child of a former member of the British Army, specifically the Brigade of Gurkhas. The parent in each case had been granted indefinite leave to enter the UK as a discharged member of the army. The appellants applied for entry clearance to the UK in order to join their fathers and settle in the UK within the family unit. At the relevant times, entry clearance guidance was in existence that was intended to inform the exercise of a discretion to grant entry clearance in circumstances which would otherwise not justify the grant of clearance under the Immigration Rules (HC 395). The guidance was originally contained in the Diplomatic Service Procedures Entry Clearance, Vol 1, General Instructions (December 2007) and was superseded by SET 12: Settlement Entry for former members of HM Forces and Families (the guidance). Various parts of that guidance were relevant only to Gurkhas, their widows or dependants. In respect of dependants aged over 18, the guidance stated that entry clearance officers, in assessing whether settlement in the UK was appropriate, should consider whether: ‘(i) one parent or a relative of the applicant was present and settled, or been admitted for, or been granted, settlement in the UK under the HM Forces rule; (ii) the applicant had previously been granted limited leave as a dependant of a member of HM Forces; (iii) the applicant had been, and wished to continue, pursuing a full-time course of studies in the UK; (iv) refusal of the application meant that the applicant would be living alone outside the UK and was financially dependent on the parent or relative present and settled, or granted settlement in the UK under the HM Forces rule; (v) the applicant would find it very difficult to function because of illness or disability without the help and support of their parent or close relative in the UK’ (the bullet points). The bullet points were in identical form in both sets of guidance. All of the appellants’ applications were refused by the entry clearance officer (ECO). In the first appeal, the Upper Tribunal (Immigration and Asylum Chamber) held that the guidance had not been applicable to the appellant, UG, and upheld the refusal of entry clearance. In the second and third appeals, the senior immigration judges held that satisfaction of one or more of the bullet points did not give rise to a presumption in favour of the applicant and that the guidance involved the exercise of a discretion which was for the ECO, and not an immigration judge, to exercise. In the second appeal, the applications were held to be outstanding before the ECO. In the third appeal the application was remitted to the ECO. The appellants appealed. They submitted that, whereas there was a discretion created in all cases in which bullet point (i) was satisfied, where any one of bullet points (ii) to (v) were additionally satisfied, the guidance created a presumption in favour of entry clearance and that, the secretary of state having identified no countervailing considerations, should direct the grant of entry clearance without further ado. The court ruled: The thrust of the guidance was not that dependants over the age of 18 would be admitted. The correct interpretation was that entry clearance might be granted to dependants over the age of 18 where settlement in the UK was appropriate. The guidance was discretionary rather than absolute and was to be exercised by the ECO upon the basis of his rounded evaluation of the circumstances in each case. The purpose of the guidance was to recognise military service by all foreign and commonwealth service personnel and to avoid the phenomenon of the stranded sibling whose parents and younger siblings had all relocated to the UK. The guidance conferred a discretion on the ECO, the exercise of which had to be informed by the objectives of the guidance and had to be rational, but it was not otherwise constrained. The ECO was entitled to pursue lines of enquiry ranging beyond the matters encapsulated in the bullet points. Nominal or even substantial satisfaction of those criteria was not of itself determinative of the critical issue whether settlement in the UK was appropriate, as was rendered obvious by a consideration of the circumstance that absence of relevant criminal convictions was not mentioned in the guidance (see , , , ,  of the judgment). In the instant cases, it had not been regarded by the ECO as relevant to consider the quality and nature of the circumstances which were said to militate in favour of settlement. Consequently, consideration had focused on matters not relevant to the outcome of the applications. Considerations of fairness and of coherent decision-making required that the applications be remitted for reconsideration by the ECO. The ECO should, in each case, apply the policy which was in force as at the date of the respective applications, but he should apply it to the facts as he finds them to be at the time of his decision. The ECO was entitled to take into account developments subsequent to the date of the initial application, insofar as they amounted to a material change of circumstances (see , , , ,  of the judgment). The second and third appeals would be dismissed. UG’s appeal would be allowed and the application remitted for fresh consideration by the ECO (see - of the judgment).
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To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN 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 Get your free guest access SIGN UP TODAY 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