Opportunities for Indian and UK firms to work together will increase as a result of the Indian elections, the Law Society has said ahead of it UK-India legal practice conference. The event, which takes place from 1-5 June, will link up visiting Indian law firms of all sizes with UK firms, to develop co-operation between the two countries. The programme will feature a conference and matchmaking session in London, a seminar on opportunities outside capital cities, a dinner in Manchester and a seminar on Islamic finance in Birmingham. Speakers at the flagship London event will include Lord Bach, the minister of justice, and Rajendra Raghuvanshi, member of the Bar Council of India and additional solicitor general of India. Law Society head of international Alison Hook, said: ‘It is no secret that UK firms will benefit from closer working with their Indian counterparts, as the Indian economy provides many opportunities for UK companies. However, it is a two-way street and the visiting Indian firms may well find new opportunities to bring to their clients’ attention as a result of networking more closely with their UK counterparts.’ Although the Indian legal market remains closed to overseas practices, the Law Society has been working to encourage the Indian government, the Indian bar and Indian lawyers to see the multiple benefits that can arise from a ‘two-way street’. Hook added: ‘We think that the recent Indian election result is an encouraging sign for legal services in India. The new Congress government looks set not only to continue but even to accelerate its economic reform efforts, and this can only benefit lawyers. The positive outlook for the Indian economy will only encourage more overseas interest in India, and that is all the more reason why Indian and UK lawyers need to work together.’
Christine Reeves v Beatrice Blake: CA (Civ Div) (Lords Justice Mummery, Moses, Etherton): 24 June 2009 Nicholas Isaac (instructed by Penman Johnson) for the appellant; Stephen Bickford Smith (instructed by Child & Child) for the respondent. Excavation – Nuisance – Party walls – Surveyors The appellant (R) appealed against a decision concerning the ability to provide for payment of legal costs under a party wall award. The respondent (B) owned a house, the flank wall of which abutted R’s driveway. B proposed to demolish the house and replace it with a new building. B served on R a notice under the section 1(5) of the Party Wall etc Act 1996 and a second notice under section 6(1). The first notice was served on the basis that B proposed to construct a new wall on the boundary with R’s driveway. The second notice was served because the level of B’s new basement would be substantially below the level of the foundations of R’s garage. The parties appointed surveyors who appointed a third. The third surveyor determined in an award that the first notice was invalid but that the second notice under section 6 was valid. B took the view that the award authorised works in respect of excavations and foundations and those works were begun on her instructions. R considered, correctly, that a further award was necessary before the works could proceed. She consulted solicitors who advised her to take High Court proceedings for an injunction. Counsel settled draft particulars of claim and draft witness statements were also prepared. B gave an undertaking not to carry out further work for the time being and no proceedings were ever begun. The surveyors then produced an award authorising the work to be carried out and directing B to pay R’s solicitors’ and legal fees in respect of the contemplated proceedings. On appeal to the county court, the judge ordered that the second award be varied by deleting the legal costs direction. R submitted that the surveyors had authority to give the legal costs direction in the second award under section 10(12)(c), under which an award might determine ‘any other matter arising out of or incidental to the dispute’, and section 10(13)(c), under which the reasonable costs incurred in ‘any other matter arising out of the dispute’ were to be paid to such of the parties as was determined by the appointed surveyor or surveyors. Held: In view of the nature of disputes referred to surveyors under the 1996 act and the wide wording of sections 10(1), 10(10), 10(12)(c) and 10(13)(c), there might be circumstances in which appointed surveyors had the power under section 10 to order payment by one adjoining owner of legal costs reasonably and properly incurred by another, Onigbanjo v Pearson  BLR 507 MCLC approved. The power to order payment of such costs was, however, restricted to costs connected with the statutory dispute resolution mechanism. As a matter of interpretation, the dispute mentioned in those provisions of section 10 was a dispute arising under the 1996 act. By contrast, proceedings in court to enforce common law or equitable remedies, such as damages or an injunction for trespass or nuisance or the threat of them, fell outside the 1996 act, as did preparations for such proceedings. The purpose of the 1996 act was to provide a mechanism for dispute resolution which avoided recourse to the courts. A power of the appointed surveyors under the 1996 act to make provision for costs incurred for the purpose of actual or contemplated litigation in court would be inconsistent with that statutory objective. The appointed surveyors had no power to grant common law or equitable relief for causes of action in trespass or nuisance, Woodhouse v Consolidated Property Corp Ltd  66 P & CR 234 CA (Civ Div) and Louis v Sadiq 59 Con LR 127 CA (Civ Div) considered. Those were the causes of action for the contemplated and threatened proceedings by R. Leaving aside the 1996 act, no one had suggested any example of parliament conferring on one or more persons, whether or not lawyers, power to make orders for payment of the costs of actual or contemplated litigation, where the court alone or some body other than those persons had the power to determine the substantive dispute. Further, in the ordinary way, no costs were recoverable by a party who prepared for litigation which was never instigated. Appeal dismissed.
The Financial Services Authority has ordered legal expenses insurers to prove to the regulator that they comply with European law that gives policyholders certain rights to choose their own solicitor. The FSA’s insurance sector director Ken Hogg warned insurers that, in light of a European Court of Justice ruling in September 2009, policy terms that ‘detract from, or qualify in any way, the freedom to choose a lawyer’ might be illegal. Hogg has given insurers until 30 September to tell the FSA what they have done to ensure that the terms of their LEI policies comply with the law. At present, insurers often require LEI policyholders seeking to make a claim to instruct solicitors from a panel chosen by the insurer. These panel firms will usually pay referral fees to the insurer, or undertake work at reduced rates, in exchange for receiving the cases. The ECJ ruled in Eschig in September 2009 that a legal expenses insurer cannot insist that its policyholders use its panel solicitors rather than a solicitor of their own choice. However, Hogg said in his letter that, under European law, there are exceptions to this general rule. Philippa Luscombe, clinical negligence partner at London firm Penningtons, said that a test case in the English courts might be necessary to determine whether Eschig should be interpreted as not allowing exceptions. Hogg said in his letter: ‘The ECJ ruling in Eschig made it clear that any provisions of a contract that detract from, or qualify in any way, the freedom to choose a lawyer, will not be compliant with [European law]. The FSA is obliged to ensure that the regulations are applied effectively and that customers are treated fairly.’
Top commercial law firms must become more flexible and less reactive to cope with the boom-bust pattern of global markets over the next 10 years, a report by consultants Jomati has suggested. Introducing variable rather than fixed costs, creating links with legal process outsourcers (LPOs), and setting up internal LPO-style businesses will be essential to dampen the effects of unpredictable markets, according to the report, New Frontiers: Law Firms in 2020. The report said: ‘As the building up of global capability grows over the next 10 years, and the investment in people, IT, office space and support staff grows for transactional teams, so will the risk of a dangerous cost over-shoot. A bust for a one-office firm is bad enough; a bust for a firm with corporate associates in 20 offices is going to hurt significantly more.’ Meanwhile, competition from Chinese law firms, which are already hiring senior lawyers from major UK and US firms and are becoming increasingly skilled, could lead to fee competition across Asia, the report predicted. Jomati principal Tony Williams, a former managing partner at magic circle firm Clifford Chance, said: ‘We often talk about global law firms as if they are finished products. The truth is, the development of global law firms is just beginning.’ Top lawyers and general counsel from the ‘baby boom’ generation will retire over the next 10 years, leaving a skills gap at senior management level, the report warned. At the same time, global law firms will increasingly have to be stocked with senior lawyers with a deep understanding of emerging markets, it suggested. Population changes will create a ‘pull effect’ on banks and corporates, which will in turn look to lawyers for advice, the report said. Predicted population growth of 10% in the US in the lead up to 2020 could signal more domestic legal work for mid-tier US firms, and increase the value of what is already the world’s most valuable legal market, the report found. It added that Japan’s stagnant economy could force companies to restructure and expand aggressively abroad, bringing related work for lawyers. An increasing number of high net- worth individuals will also bring more private client work, and in particular a need for advice on tax avoidance, the report suggested.
One of the most difficult decisions a family judge can be called on to make is whether to grant permission to a parent with a residence order to relocate outside the jurisdiction of England and Wales. Cheap air travel, emails, mobile phones, Facebook and Skype aside, a relocation to the other side of the world will, inevitably, have a dramatic impact on a child’s contact with the ‘left-behind’ parent. In Payne v Payne  EWCA Civ 166, Lord Justice Thorpe suggested the following ‘discipline’: a) Pose the question: is the mother’s application genuine, in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, by which I mean founded on practical proposals both well researched and well investigated? If the application fails either of these tests, refusal will inevitably follow; b) If, however, the application passes these tests, then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland? c) What would be the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal? d) The outcome of the second and third appraisals must be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate. Put another way, as summarised by Dame Elizabeth Butler-Sloss, the then president of the Family Division: a) The welfare of the child is always paramount; b) There is no presumption created in favour of the applicant parent; c) The reasonable proposals of the parent with a residence order wishing to live abroad will carry great weight; d) Consequently, the proposals have to be scrutinised with care, and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end; e) The effect on the applicant parent and the new family of the child of a refusal of leave is very important; f) The effect on the child of the denial of contact with the other parent and in some cases his family is very important; g) The opportunity for continuing contact between the child and the parent left behind may be very significant. The court in Payne was alive to the importance that has been consistently attached to the emotional and psychological well-being of the primary carer. It was also aware of the danger that, if the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the non-resident’s parent’s rights not only under article 8 of the Human Rights Act, but also under article 6. In spite of that recognition, Payne has, nevertheless, attracted considerable criticism for that reason. For proponents of the alternative Washington Declaration, the problem of attributing too much weight to the psychological impact of refusal of leave on the thwarted primary carer is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions (See Mr Justice Mostyn in Re AR (A Child: Relocation)  EWHC 1346). In Re D (Leave to Remove: Appeal)  EWCA Civ 50 Lord Justice Wall (as he then was) said: ‘There is a perfectly respectable argument for the proposition that [Payne] places too great an emphasis on the wishes and feelings of the relocating parent and ignores or relegates the harm done to children by a permanent breach of the relationship that children had with the parent left behind which would, in the right case, constitute a compelling reason for an appeal [to the Supreme Court] to be heard.’ (Re D was not such a case, however.) There was some sympathy for those sentiments expressed in Re H (Leave to Remove)  EWCA Civ 915. However, a cautionary note was sounded. If the present law did, indeed, place excessive weight on the negative impact of a refusal to permit relocation on the primary carer, consideration might need to be given to whether the Washington Declaration, as presently drafted, by contrast placed insufficient weight on it. District Judge Julie Exton sits at Bristol County Court and is the chairwoman of the Family Sub-Committee of the Association of Her Majesty’s District Judges. Re W  EWCA Civ 345 concerned an Australian national who wished to return to Australia with two children, aged 12 and eight. At the time of the mother’s application, the father had very little contact with the children and did not have parental responsibility. During the course of the proceedings, however, the father was granted parental responsibility, and visiting and staying contact. Judge Tyzack QC found that the mother would be devastated if her application were refused. Her relocation plans had not been criticised. Her motivation was unimpeachable. She proposed annual visiting contact for a month in addition to contact through Skype, telephone, and email and letter. Although they loved their father and enjoyed contact with him, the children themselves wished to go to Australia. The CAFCASS officer, who filed three reports, was of the view throughout that the mother should be allowed to go. Nevertheless, Judge Tyzack refused permission. The Court of Appeal was clear that, in carrying out the necessary balancing exercise, he had got it plainly wrong and it was appropriate for the court to interfere. The mother’s plans were clearly in the best interests of the children. The scales weighed heavily in her favour, particularly the effect on the children if the application were refused, and she should be allowed to relocate. Even weighing the father’s objection and the loss of his newly gained relationship with the children, the balance still weighed heavily in favour of relocation. When considering the best interests of the children, the best interests of the primary carer was an important consideration and clearly outweighed the newly acquired relationship with the father. Furthermore, there was no evidence that the father’s relationship with the children would be terminated. More importantly perhaps, in the context of the current debate, Lord Justice Wall conceded that too much prominence had been accorded to what he said in Re D; and he went so far as to retract the word ‘ignores’ from the paragraph quoted above.
Foreign judgment – Enforcement or recognition – Jurisdiction of foreign court The liquidator of the claimant company applied to the court to enforce in England an order made in Australia, providing for, amongst other things, the payment of sums of money by the defendants, members of Lloyds syndicate, to the applicant. There were three possible bases for doing so, firstly under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act), secondly under s 426 of the Insolvency Act 1986 (the 1986 Act) and thirdly under Common Law. The court rejected the argument based on the 1933 Act, having regard to the Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994 (SI 1994/1901) (the 1994 Order), allowed the request under the 1986 Act and found alternatively, it could also have done so under the Common Law. The defendants appealed. The issues were, inter alia: (i) whether, having regard to the 1994 Order, the 1933 Act applied to judgments under which a sum of money was payable, made in insolvency proceedings by a recognised court; (ii) whether a registration under the 1933 Act could be set aside under s 4 of the 1933 Act; (iii) whether the court had power under s 426 of the 1986 Act to assist with a view to enforcement of a money judgment issued in foreign insolvency proceedings; (iv) whether the power under s 426 of the 1986 Act should be exercised in the discretion of the court; and whether the judge at first instance had correctly exercised his discretion (v) whether there existed at common law the duty to help the Australian court. The appeal would be dismissed. (1) The 1933 Act did apply to judgments under which a sum of money was payable made in insolvency proceedings by a recognised court, subject to the terms of the order by which the court was recognised (see  of the judgment). It could not be said that the 1933 Act had not been intended to apply to judgments in insolvency proceedings. There was nothing to indicate that insolvency proceedings were regarded as altogether outside the scope of the proposed system of registration contained within the 1933 Act. The class of judgments to which the 1994 Order made the 1933 Act apply was any order (for the payment of money) in any proceeding that a common law jurisdiction would call civil proceedings. That therefore did not exclude orders for payment made in insolvency proceedings. The use of the phrase ‘civil or commercial matter’ in the 1994 Order did not limit the class so as to exclude money judgments issued in insolvency proceedings (see , , , ,  of the judgment). State of Norway’s Application (No 2), Re  1 All ER 745 applied. (2) In the instant case, if the liquidator had obtained the registration of the Australian order under the 1933 Act, it would have been be open to the defendants to apply to have that registration set aside. The only ground that would be relevant would have been s 4(1)(a)(ii) of the 1933 Act, namely that the Australian courts had had no jurisdiction in the circumstances of the case. That avenue, however, was not available to the defendants on the basis of established case law (see  of the judgment). Rubin v Eurofinance SA  All ER (D) 358 (Jul) applied. (3) Section 426 of the 1986 Act extended to providing assistance by way of the enforcement of a foreign judgment made in insolvency proceedings (see  of the judgment). In the instant case, in principle, therefore both the 1933 Act and s 426 of the 1986 Act applied (see  of the judgment). (4) In the instant case, because, it would have been open to the liquidator to register the judgment under the 1933 Act, and that judgment could not have been set aside. It would be possible to take that factor into account by not giving assistance under the s 426 of the 1986 Act, leaving the liquidator to take the necessary steps under the 1933 Act. Equally, it would be appropriate to take the situation under the 1933 Act into account, not least in order to ensure that nothing relevant under the 1933 Act was being avoided by the use of s 426. Although the trial judge had proceeded on a different basis, the basis on which he had proceeded was correct (see  of the judgment). The judge’s exercise of his discretion under s 426 of the 1986 Act was not at fault, and the position had not been altered by conclusions as to the application of the 1933 Act (see  of the judgment). Decision of Lewison J  All ER (D) 54 (Aug) Affirmed In Part. Gabriel Moss QC and Barry Isaacs QC (instructed by Mayer Brown International LLP) for the claimant. Robin Knowles QC and Blair Leahy (instructed by Edwards Angell Palmer & Dodge LLP) for the defendants. Re New Cap Reinsurance Corporation Ltd (in liquidation): Court of Appeal, Civil Division (Lords Justice Mummery, Lloyd, Mr Justice McFarlane): 9 August 2011
The Co-operative Legal Services (CLS) is to offer a family law service spearheaded by leading family lawyers from London firm TV Edwards in the first move by a high street brand into the sector, the Gazette can reveal. Christina Blacklaws, Law Society council member for child care and TV Edwards partner, this week began work as a director of CLS to lead the creation of the family law unit.Jenny Beck, TV Edwards’ managing partner, will head the unit’s professional practice, and Chris May, the firm’s former head of business development and strategy, will lead its business development arm.Blacklaws and Beck will remain partners at TV Edwards until July 2012, when they will become consultants.CLS aims to become one of the first alternative business structures licensed by the Solicitors Regulation Authority, enabling it to launch its family law service in mid-2012. It will offer a full range of fixed-price family legal services, face to face as well as through ‘a range of innovative options’, and may bid for a legal aid contract in the next tender round.CLS, established in 2006, is part of the Co-operative Group, the UK’s largest mutual business with a turnover of £13.7bn and over 5,000 retail outlets. It employs more than 400 staff offering personal injury, will-writing, probate and estate administration, conveyancing and employment services. In 2009, it launched an advertising campaign promoting its legal services and aims to become the preferred provider of consumer legal services in the UK. In 2010, CLS reported a profit of £3.9m on a turnover of £24.2m. In the first half of 2011, revenues increased by 22% and profits by 3%.Blacklaws said the ‘innovative and pioneering’ new service will address current ‘unmet legal need’ in challenging times. ‘We want to make access to legal services better for people by creating and implementing innovative and socially responsible services,’ running high-quality services with ‘fair and transparent pricing’ that the public can have ‘real confidence in’, she added.‘Family legal problems affect so many people in this country. It is often the worst experience of their lives. We want to help people to get through this by supporting them with sensible child-centred and future- focused legal advice.’She stressed that the family law service would be led and run by solicitors. ‘The Co-operative sees this as a critical component to deliver the quality of service across all its legal services,’ she said.Beck said: ‘The Co-operative is a trusted brand and will be a trusted adviser. We will aim to secure access to justice for all at a time when public-funded services are contracting.’CLS managing director Eddie Ryan said: ‘We are working extremely hard with the SRA in preparation for the introduction of ABSs and we look forward to being able to provide a full range of legal services to our members and customers.’The group’s deputy chief executive Martyn Wates said the Legal Services Act will change the way in which legal services are provided. ‘We believe that the presence of The Co-operative’s trusted brand in the marketplace, together with a combination of first-class products and services, will provide customers with greater accessibility and better value for money,’ he said.Law Society chief executive Desmond Hudson said: ‘Ventures such as this are part of the future of the UK legal sector. The involvement of such respected practitioners in such a venture should increase confidence in the ABS model.’Read an interview with Christina Blacklaws.
The Law Society is investigating claims that trainee solicitors whose contracts are terminated are being made redundant unlawfully. David Taylor, a partner at London firm Hanne & Co, said the number of redundant trainees seeking advice has risen this year for the first time since 2008. Few if any are willing to lodge a claim for wrongful dismissal, but Taylor believes they should be granted the same rights as apprentices, whose contracts cannot be terminated except in exceptional circumstances. The issue came up at a recent meeting of the Law Society Membership Board, which Taylor chairs. Newly published minutes of the meeting show that the Law Society of Scotland has already begun investigating. The issue ‘would have major implications for firms in England and Wales as there was no provision in the SRA contract for termination on the ground of redundancy,’ the minutes say. Law Society president John Wotton is to raise the matter with his Scottish counterpart. Taylor told the Gazette: ‘You can understand from the employer’s point of view that they need to save money but in my opinion it’s not legitimate for them to terminate training contracts. It might require a test case but the problem is trainees don’t want to be known as a trouble-maker and most just want to keep their head down and qualify as soon as possible.’ Iain Mitchell QC, a senior counsel commissioned to look into the issue for the Scottish Young Lawyers Association, concluded that a trainee may not be made redundant as ‘a traineeship contract is an apprenticeship contract at common law’. He said: ‘A trainee may be prematurely dismissed only in the event of misconduct so grave and so repeated and persistent as to amount (in effect) to a repudiation by him of the training contract.’ The Law Society advises that trainees should always check their contract to ensure the firm has not breached any clauses in making them redundant. Where a genuine situation of redundancy has been identified, practices must make an application to the SRA for termination of the contract.
Spelman (by his litigation friends) v Express Newspapers: Queen’s Bench Division (Mr Justice Lindblom): 15 February 2012 The claimant was the son of a cabinet minister. The defendant was a newspaper consortium. One of its newspapers, the Daily Star Sunday, obtained private information relating to the claimant, which it wished to publish on 12 February 2012. Before it could do so, the claimant made an application to restrain publication, and for anonymity in the proceedings. The issues were whether: (i) an injunction should be granted to restrain publication of the private information; and (ii) the claimant should be granted anonymity. Consideration was given to article 8 of the European Convention on Human Rights. The court ruled: (1) The injunction would be granted. The defendant’s intended story contained sensitive personal information. It was enough, in the instant case, to attract a reasonable expectation of privacy such as to engage the claimant’s rights under article 8 of the Convention. In addition, it was more likely than not that the publication of the story would have a significant harmful effect on the claimant. By contrast, publication of the story would not advance the public interest claimed for it to any material degree. On a balance all these factors, the claimant had made his case out (see -, - of the judgment). Cream Holdings Ltd v Banerjee  4 All ER 617 applied; Murray v Express Newspapers plc  All ER (D) 70 (May) applied; Bonnard v Perryman [1891-4] All ER Rep 965 considered; S (a child) (identification: restriction on publication), Re  4 All ER 683 considered; DFT v TFD  All ER (D) 103 (Oct) considered. (2) The instant case was not one in which the court should take the exceptional course of anonymising the proceedings. The parties were afforded sufficient protection by being named in the normal way in the proceedings while the subject matter of the application and the precise nature of the relief granted were withheld from the public domain (see  of the judgment). Secretary of State for the Home Department v AP (No. 2)  4 All ER 259 applied; JIH v News Group Newspapers Ltd  2 All ER 324 applied. Right to respect for private and family life – Freedom of expression Jacob Dean for the claimant; Christina Michalos for the defendant.
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