The lord chief justice has led tributes to Sir Henry Hodge, one of the first solicitors to become a High Court judge, who died last week aged 65. Lord Judge said that Hodge had been ‘an outstanding president of the Asylum and Immigration Tribunal, a distinguished High Court Judge, and a man whose warmth enriched all his judicial colleagues’. Lord justice Carnwath, senior president of tribunals, described Hodge’s death as ‘a great blow to the tribunals judiciary. His accomplishments as a solicitor and judge were formidable, but his easy and friendly manner will be remembered with equal fondness’. Hodge was admitted as a solicitor in 1970 and spent his early career with the Child Poverty Action Group and as chairman of the National Council for Civil Liberties before founding the north London legal aid practice Hodge Jones & Allen. He served as deputy vice-president of the Law Society in the 1990s. In an interview with the Gazette following his appointment to the High Court in 2004, Hodge said that solicitors faced pressure from their firms not to go into the judiciary ‘and it is getting worse’. He had a high political profile as the husband of former Labour minister Margaret Hodge. Hodge’s friends and family are requesting donations to Leukaemia Research’s ‘Big Five-0’ appeal in his memory – www.bigfive-0.co.uk.
Will the courts ever quash an act of parliament? The orthodox answer is, of course, ‘no’ – although there were hints to the contrary in the Jackson case of 2005 when the law lords dismissed a challenge to recent fox-hunting legislation. Earlier this month, though, a first-instance judge decided that courts did have the power to overturn legislation if it met the traditional test for judicial review. How was this possible? Only because the judge was sitting at the Court of Session in Edinburgh and the legislation being challenged was an act of the Scottish parliament. And Lord Emslie did not go so far as to grant the challenge: he decided that the legislation did not ‘come anywhere near the standard of “irrationality” which would be necessary’. But Brodies, which represents four insurance companies that challenged the Scottish act, lodged an appeal to the Inner House last week. There is every chance that the case will end up before the Supreme Court in London. That, in a sense, is where the story begins. In October 2007, the law lords delivered a judgment about pleural plaques. The case is reported under the name of Rothwell though it was known originally by the name of another claimant, Johnston. Pleural plaques are areas of fibrous thickening of the pleural membrane which surrounds the lungs. They may be caused by negligent exposure to asbestos. But they normally have no symptoms, they produce no pain or discomfort and they are not visibly disfiguring. Crucially, as Lord Hoffmann pointed out, pleural plaques do not cause or lead to other diseases. ‘But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases’. As a result, the law lord added, ‘a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression’. That, as Lord Emslie explained in the Court of Session, is because ‘the diagnosis confirms significant asbestos exposure in the past, of which [individuals] may or may not previously have been aware; it underlines the much higher risk which they now face… of contracting lung cancer, mesothelioma or asbestosis; and in some cases it may bring to mind the suffering and perhaps death of friends, colleagues and relatives’. The law lords ruled in 2007 that claimants diagnosed with pleural plaques could not sue their employers for compensation. Neither the risk of future disease nor anxiety about the possibility of it materialising amounted to damage for the purpose of creating a cause of action. It was a controversial decision, as I well remember. When I was asked to present an award to David Pugh, a solicitor who helped win the case for insurance companies, I was heckled by an audience of claimants’ lawyers. And the case is no longer good law in Scotland. Last June, the Scottish parliament passed legislation – with immediate and retrospective effect – declaring that pleural plaques ‘constitute actionable harm for the purposes of an action of damages for personal injuries’. That legislation was opposed by insurers, which now face claims for hundreds of millions – perhaps billions – of pounds from people who developed pleural plaques in Scotland. Having failed to prevent the 2009 act being passed, the insurers are now trying to overturn it. In court, the Scottish government maintained that the insurers lacked the necessary standing to bring a challenge; the only people who stood to lose from the legislation were employers who might face actions for negligence. But that argument was roundly dismissed by Lord Emslie as ‘narrow and technical’ and ‘an affront to justice’; he found that the companies had standing both at common law and under the human rights convention. The next question was whether ‘the validity of the 2009 act, as legislation emanating from the non-sovereign Scottish parliament, is or is not susceptible to challenge on traditional common-law grounds’. Unlike primary Westminster legislation, subordinate legislation – made by ministers under delegated powers – is liable to judicial review. The question for Lord Emslie was whether the same rule applied to acts of the Scottish parliament. A different Scottish judge had taken the view that Scottish acts were in the same category as primary Westminster legislation. That, said Lord Emslie, depended on whether the 2009 act contained ‘anything sufficient, whether by clear words or necessary implication, to oust the fundamental supervisory jurisdiction of the courts at common law and thus… make the [Scottish] parliament the sole judge of the rationality of its own legislation’. In the judge’s view, it did not. If the Westminster parliament had wanted Holyrood ‘to be the first UK statutory body for two centuries or more to be wholly immune from judicial review on traditional common law grounds’, it would have said so. However, judicial review of secondary legislation – as in England and Wales – was confined to ‘extremes of bad faith, improper motive or manifest absurdity’. This legislation came nowhere near manifest absurdity, and the insurance companies had not ‘overtly’ accused the Scottish parliament of bad faith or improper motive. ‘But if, hypothetically, a Scottish parliament were ever to legislate in a manner which could be described as a flagrant and unconstitutional abuse of power’, Lord Emslie regarded it as ‘unthinkable that the courts should have no option but to hold themselves powerless to intervene’. And what if the Westminster parliament were to behave in such a way? Would the courts still not intervene? If this case does reach the Supreme Court, it will be fascinating to hear what the justices have to say.
Jill Andrew is an employment partner at Marriott Harrison. She is the author of ‘Discrimination issues for law firms’, Practice Management Handbook (Law Society 2009), and editor of the Law Society’s forthcoming publication, Managing People in Legal Businesses Mindset changeSo why is this and what needs to be done to change things? Essentially the answer lies in the mindset of those making the decisions. All too often the question asked by male partners (and indeed some female partners) when faced with a female candidate, either for a job or for partnership, who is either of child-bearing age or has already produced, are redolent of those apparently in the email which led to the ‘question of motherhood’ incident and which the press were quick to seize on. Not everyone reduces such thoughts to writing and then circulates their musings to colleagues, and there must be a lesson there for us all in this electronic age. However, if the effect of this publicity is to cause many of us to question our ‘subconscious’ views, as employment tribunals often refer to them, then maybe this is an awakening that is long overdue. It is not so much a case of asking the wrong questions, but the right questions at interviews. If there is a talented and able candidate presenting, of either sex, the question should be what can we do to get the best out of this candidate and how can we best support them. Intrusive questions about someone’s personal circumstances are simply not acceptable. Attempts to break this basic rule by seeking to inject a degree of apparent subtlety into the process are doomed to failure and can so easily be exposed, as this incident testifies. Those in decision-making positions have to do more than pay lip service to change. Some firms have demonstrably sought to tackle the sex equality issue by making full use of the options that technology now offers, devising flexible ways of working which work for the firm, the individual and most importantly their clients. These are welcome steps and it is unrealistic to expect things to change overnight. However, incremental steps along this path must be matched by concerted and sustained efforts by those at the top of any law firm to inculcate a culture within the organisation that truly embraces and promotes equality at all levels, and allows its best people to thrive. If such a culture is not deeply embedded, accidents can too easily occur and the subconscious layer of discrimination will again raise its ugly head. Then the fallout may not necessarily be limited to unwelcome publicity, but a hefty payout on the end of a lost discrimination case. Many law firms pay thousands of pounds to PR agencies and marketing professionals to get their names in print in the national press, and there are some who say that all publicity is good publicity. However, a certain partner of a national firm and his colleagues who have, no doubt, invested hugely in time and money to promote their diversity credentials may currently be taking a different view. Headlines such as ‘Top Lawyer and a Tricky Question of Motherhood’ (Daily Telegraph, 2 February 2010) can hardly be described as welcome, though from the viewpoint of the profession as a whole there will be some who think that the episode does no more than reveal the truth about the real record on diversity in the law, in all its manifest forms. There is an undoubted tension between the pressure of the 24-hour demands of some aspects of legal work and the pressures of family life, but these demands are not necessarily irreconcilable. It is noticeable that, according to a recent survey, the firm with the highest number of women partners was a firm that was not involved in transactional work, but even then only 35% of partners were women – a significant way short of parity. Furthermore, the available statistics clearly show that although the number of women entering the profession has exceeded the number of men for a number of years, this is not matched by the number of women attaining partnership.
The government is to cut £325m from the Ministry of Justice’s budget, it said today. The cuts will form part of £6.2bn in savings aimed at reducing the UK’s deficit, outlined by the chief secretary to the Treasury David Laws today. The news comes as justice secretary Kenneth Clarke told the BBC’s Politics Show in the East Midlands that he had offered to cut legal aid as part of the deficit reduction programme. Clarke is reported to have said that the legal aid service needed to be improved, for less money, and promised a ‘sensible’ approach to making savings. Other government department cuts include £780m at the Department for Communities and Local Government; £367m at the Home Office; £535m at the Department for Work and Pensions; £451m at the Chancellors’ Departments; and £836m at the Department for Business.
MPs spearhead undersettlement claims drive for former coal miners Firm launches website for ‘undersettled’ coal miner compensation claims MP rallies miners for legal action against legal adviser Miners win negligence payouts from solicitors over coal health claims The first known court actions against law firms for alleged undersettlement of sick coal miners’ government compensation claims began this morning. As first revealed by the Gazette in July, 18 cases will be heard today and tomorrow in Leeds County Court. The claimant miners allege that their solicitor failed to obtain the full amount of compensation owed to them under the government’s coal health compensation scheme, the largest personal injury compensation scheme ever devised. Oldham firm Mellor Hargreaves is bringing the actions on behalf of the miners. The news comes over a year after a Gazette special report explored the alleged undersettling of miners’ compensation claims. See also: Miners’ solicitors bombard government with FoI requests Controversy continues over miners’ claims Website launched to gather ‘undersettled’ coal miner claims
Public Interest Lawyers v Legal Services Commission: QBD (Admin) (Mr Justice Cranston): 13 December 2010 Access to justice – Disability equality duty – Mental health – Tender process Paul Bowen (instructed by Bindmans) for the claimants; Paul Nicholls (instructed by the in-house solicitor) for the defendant. The claimant firms of solicitors (P) challenged decisions of the defendant Legal Services Commission in respect of the award of contracts for the provision of publicly funded legal services in public law and mental health. P were firms that had held contracts with the commission to provide publicly funded legal services in public law and mental health law. Following a consultation process, the commission conducted a tender to allocate such contracts once the existing contracts expired. The contract specification required firms to employ people meeting specified supervisors’ standards. Supervisors’ self-certification forms, completed for the commission’s verification process, did not require supervisors to demonstrate that they met the criteria. The effect of the tender substantially reduced the new matter starts allocated to firms that had worked in public law and mental health under the previous contracts, including firms that had held contracts relating to high-security hospitals. P argued that the commission had (1) breached the equality standard demanded by Directive 2004/18, which had been implemented by the Public Contracts Regulations 2006, by failing to verify the quality standards of the contracting firms; (2) failed to comply with the general disability equality duty in section 49A of the Disability Discrimination Act 1995 in respect of mental health contracts relating to high-security hospitals, by failing to assess the impact on patients who might no longer be able to instruct their existing solicitors; (3) breached its duty under section 4 of the Access to Justice Act 1999 because the outcome of the public law tender had been that clients’ access to the most experienced firms had been reduced because of the substantial reduction of new matter starts awarded to them. Held: (1) The verification of quality standards had been flawed; in particular, the process had not allowed the commission to verify that firms met the criteria in relation to the employment of appropriate supervisors, as the self-certification form did not require supervisors to confirm specifically the nature of the employment arrangement between them and the organisation or whether they had complied with the requisite supervision standards. Because the verification process had fallen short, organisations might have gained contracts despite not meeting the supervision criteria. The equality standard in the Directive and the Regulations had therefore been breached, Evn AG v Austria (C-448/01)  ECR I-14527 ECJ (6th Chamber) applied. To ensure that unfairness caused to successful tenderers who did meet the relevant criteria was remedied, the commission was to ensure, within a limited period, that all firms holding contracts in public law and mental health complied with the supervision standards. Those found not to comply would have to have their contracts removed and any new matter starts would have to be redistributed to those firms meeting the requirements (see paragraphs 65-66 and 87 of judgment). (2) The commission had had due regard to the position of patients in high-security hospitals in striking the balance between continuity of advice and quality of advice in favour of improving quality. There could be no challenge under the general disability equality duty to the tender process; however, the duty had become engaged because of the outcome of the tender. The outcome was that all the patients were assured a high-quality service, but many of them needed to switch advisers, which might have had an adverse impact on those already vulnerable. Accordingly, the commission had to have due regard to whether it needed to take steps to ameliorate that result of the tender (paragraphs 76-77 and 88). (3) The commission had not breached its duty under section 4 of the 1999 act. The outcome of the public law tender had been that specialist firms were no longer able to open the advice cases they had under the previous contract. That did not preclude them from undertaking publicly funded litigation under certificate. Whatever view was taken of that outcome, there had been no legal flaw in the way the commission had conducted the tender: it had conducted an extensive consultation exercise and had sufficiently inquired about the potential impact on clients (paragraphs 86 and 89). Judgment for claimants in part.
More than one-third of solicitors had yet to start renewing their practising certificates online through the mySRA website by Tuesday of this week, the Solicitors Regulation Authority said. The deadline for the first batch of registrations is Monday (13 February).As the Gazette went to press, the SRA confirmed that 60% had begun an application, with 14% of applications completed and PCs issued.The majority of applications so far have been from sole practitioners and smaller firms. Numbers are expected to accelerate when larger firms complete their bulk renewals.SRA chief executive Antony Townsend apologised again for difficulties in using the online process, which some solicitors have complained is slow or not working at all. But a spokesman for the SRA said there are no plans for concessions on the renewal timescale.Solicitors yet to complete the process are being urged to act quickly. Firms and individuals whose full name begins with A-D have until 13 February to renew. Those in band E-Z have until 21 February.Any solicitors suffering delays during the process, particularly when inputting security details, are asked to call the SRA.
Plans for the Legal Ombudsman to handle complaints about claims management companies will benefit consumers and the legal profession, according to the chief ombudsman. Proposals to bring complaints about claims management into the scheme’s remit were confirmed at this week’s meeting of the Office for Legal Complaints. Earlier this year, LeO and the Ministry of Justice, which regulates claims management companies, signed an understanding to share information on any breaches of existing rules. Chief ombudsman Adam Sampson, blogging on the LeO website, said the plans had almost unanimous support from across the legal sector. He said: ‘For consumers, we are offering the promise of wider access to redress. For the profession, an equalising of the playing field.’ He also said the operating cost of his organisation would be shared more widely. As part of the memorandum of understanding, agreed in January, the MoJ will advise on the rules surrounding regulation of claims management companies. In return, LeO will supply the MoJ with information about the number of complaints and any trends they may indicate. Meanwhile, a company handling complaints for the Legal Ombudsman has apologised for a change of address that left solicitor firms giving wrong information to clients. Under the Solicitors Regulation Authority code of conduct, clients must be informed at all times of their right to complain to the ombudsman and ways of doing so. However, the ombudsman changed its address last year when its previous mail scanning contractor was taken over. Firms should change LeO’s postal address in their terms of business and on their websites to ensure clients’ right to complain is not inhibited. The correct address is PO Box 6806 Wolverhampton, WV1 9WJ.
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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