Caution at competitive tendering for housing duty contracts

Clarity over new rules for solicitors’ firms wishing to tender for 2018 civil legal aid contracts were today welcomed by the Law Society of England and Wales.

However, the Society has considerable concerns about a proposal for price-competitive tendering for Housing Possession Court Duty Schemes which will be consulted on until 17 March 2017.

Duty scheme contracts are issued on the basis that there is only one for each court – the process therefore has to be competitive – but in a new departure the Legal Aid Agency (LAA) has said this time it has to be price competitive.

“We see considerable problems in price-competitive tendering – the cheapest offering will not necessarily be the best. This could result in a race to the bottom which may impact on professional standards,” said president of the Law Society of England and Wales Robert Bourns.

“A price war will not improve services and could negatively impact on clients.”

“The LAA needs to set out what steps it will take to mitigate this risk. It should also keep in mind that cuts in payment only compound years of cuts for the solicitors that look after the interests of our most vulnerable citizens. It may mean that contracts which are already at best only marginally economically viable for firms become unsustainable.”

Though the Law Society has concerns about the price-competitive tendering element, there were elements to the proposals which it welcomed.

“In the bulk of cases contracts will be awarded to those firms that match the LAA’s stipulated standards and this is something we can welcome as it helps underpin quality.”

The LAA published its headline intentions for the 2018 civil contracts on Friday – for most categories there is no significant change from the previous tender process or the contract terms.

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Whiplash plans under fire from Law Society

Plans to up the small claims limit for personal injury to £5000 today came under fire from the Law Society of England and Wales.

“These proposals will completely undermine the right of ordinary people to receive full and proper compensation from those that have injured them – often seriously – through negligence,” Law Society president Robert Bourns said.

“This five-fold increase will stop people getting the legal advice they need in order to bring claims for the compensation they are entitled to in law.

‘People may be tempted to try to bring claims themselves without expert advice. This will clog up the court system creating a David and Goliath situation where people recovering from their injuries act as litigants in person without legal advice – those defending claims can often afford to pay for legal advice. This undermines ordinary people’s ability to access justice – especially if defendants refuse to accept liability forcing people to fight through the courts without legal help.

“Spinning this proposal as an attack on the ‘compensation culture’ and claiming it will reduce premiums is misleading. If you are injured through no fault of your own you should be allowed to claim for that.”

Robert Bourns added: “We do however support the proposal to prevent claims being settled without medical evidence. This should curtail the practice of some insurers trying to persuade people to settle for less than their claims are worth without evidence of the actual value.”

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Independent judiciary underpins our democracy and rule of law

An independent judiciary is fundamental to Britain’s democracy and to the rule of law and it underpins the UK’s reputation for balance and stability, the Law Society of England and Wales said as it welcomed today’s comments from Attorney General Jeremy Wright that were supportive of the High Court judges in last Thursday’s Article 50 case.

“Attacks on the judges simply because they were doing their jobs does our country no credit and government ministers must be unequivocal in their support for the rule of law even if they disagree with the judgment,” Law Society President Robert Bourns said.

“It is part of the role of lawyers to defend unpopular causes and there has been an increasing narrative in recent months that seeks to conflate the jobs solicitors and barristers do with the causes they represent as part of our system of justice. The extension of this to disparaging and criticising judges is dangerous and damaging.

“This very narrative is undermining to a system which has evolved over many centuries and which helps ensure that power is not abused and that – where there are legal matters to be decided – citizens have recourse through the courts.

“The vote on 23 June threw up an unprecedented set of challenges – but it decided just one thing: that Britain would leave the EU. We are fortunate in this country to have a set of institutions which provide clarity and resolution of issues triggered by that referendum.

“This includes next month’s Supreme Court hearing on Article 50 which we hope will be greeted – whichever way it goes – with a much less inflammatory reaction.”

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Report shows risks to independence of UK legal profession


A strong and vibrant legal profession is vital to ensuring that the rule of law is upheld, the Law Society said today welcoming the report of the International Bar Association (IBA) Presidential Taskforce on the independence of the legal profession.

Law Society chief executive Catherine Dixon said, “A strong and vibrant legal profession is vital to ensuring that everyone has access to justice and that the rule of law is upheld. This important report identifies areas where legal independence is under attack across the world including in the UK.

“We must never take the independence of the legal profession for granted. In the UK legal professional privilege (LPP) is under attack. LPP is a cornerstone of our justice system in that it ensures a person can speak confidentially to their solicitor without the risk that confidentiality will be breached by a third party, including the State.

“The report also identifies a risk to the independence of the legal profession in the UK because the oversight regulator, the Legal Services Board (LSB), is a body of Government.  It is notable that in a recent LSB report outlining its vision of regulation this government body failed to recognise the importance of an independent legal profession, which if lost would undermine the very fabric of our society and our ability to maintain the rule of law.

“It is imperative in this context, and in light of the many threats to legal independence around the world, that the legal profession stands together. We cannot be complacent, and we must continue to fight to ensure the survival of strong, vibrant independent legal professions around the world.”

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Rights of vulnerable people in deprivation of liberty hearings

People unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty, the Court of Protection said today.

The Law Society of England and Wales intervened in the case of JM & others to help the Court of Protection in its efforts to find a solution to the lack of appropriate representatives available for vulnerable people in cases where decisions are made about their freedom.

Law Society of England and Wales president Jonathan Smithers said:

“Anyone living with dementia, Alzheimer’s or a learning disability must receive treatment that is in their best interests, whether they are in hospital, a care home or a family home. These cases can be about enforced medical treatment, restraint, limits on people’s movements or on visitors. Many families will understand the challenges of making decisions for a relative who is unable to give their consent.

“When a vulnerable person doesn’t have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process. If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare.”

In an unprecedented judgment, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on the government to ensure that each vulnerable individual whose liberty is considered in the Court of Protection has appropriate representation when their case is considered. The judgment was achieved by way of four test cases (JM & others) where no appropriate representative could be found for reasons including resource constraints.

Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

Law Society president Jonathan Smithers added: “The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people’s rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people’s rights are threatened.

“We recognise that the Court of Protection, local authority and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.

“Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

10 March 2016

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Law Society Financial Benchmarking Survey shows majority of law firms weathered a challenging 12 months

The income of firms polled in the 2016 Law Society Law Management Section (LMS) Financial Benchmarking Survey has increased for a sixth consecutive year, with a median rise last year of 5.4 per cent, despite a challenging year.

The 2016 survey findings are generally positive, with net profit per partner rising for the fifth consecutive year and now standing at £146,600 per partner.

Law Society president Jonathan Smithers commented: “The Law Society welcomes the news of a continuing increase in income for the majority of firms surveyed, particularly after the challenges of the last decade. Our Future of Legal Services report brings together new and existing evidence to identify the key drivers for change over the next five years, together with the opportunities and potential threats. Having good management helps firms financially, which will be important for them to remain sustainable in the face of increased competition.”

One area of concern, however, is that a quarter of participating firms’ partners took more money out of their firms than they made in profits, up from a fifth last year.  For law firms to remain financially sound, it is important that a considerable amount is retained to fund working capital.

LMS chair Robert Banner warned: “The firms that take part in the Law Society Law Management Section Financial Benchmarking Survey usually have a particular interest in high performance and management. If a quarter of these firms are over-drawing then the proportion over-drawing for the rest of the profession is likely to be higher. The resources we offer members support firms to improve management processes across the board, including on this vital issue.”

The Financial Benchmarking Survey also indicates:

  • Increased fee income across most work types and most regions;
  • A rise in the breakeven point for a fee earner, up from £102,000 last year to £109,000 this year, mainly due to increases in fee earner costs and non-salary overheads;
  • That firms have a reasonably good handle on lock up (work in progress and debtors).

Paul McCluskey, Head of Professional Practices at Lloyds Bank Commercial Banking, which sponsors the survey, commented: “The last 12 months continued to offer challenges for many law firms and although the majority of results are encouraging, a key priority for all firms in 2016 will be to effectively manage their cash flow.”

Jon Cartwright of Hazlewoods, which undertakes the survey on behalf of the Law Society Law Management Section added, “There is no doubt that most mainstream legal practices are in good shape financially, and more confident as a result.  Medium term strategy planning is now firmly back on the agenda, although clearly some areas such as personal injury and criminal continue to be tricky.”

The 2016 LMS Financial Benchmarking Survey was based on questionnaires completed by 200 firms from across England & Wales with a combined income of £1bn. The full survey results will be published in March 2016.  The full survey results will be published in March 2016 with participants receiving a free copy of the report including a firm specific findings booklet. Other firms can purchase the report.

Responding to the headline report findings Paul Bennett a professional practice and regulatory partner with Aaron & Partners LLP said firms with excess drawings should: “Take advice now and improve their firm’s drawings position in the short to medium term given that lenders and the SRA are often concerned by financial mismanagement of this type. If it is being addressed the pressures will be much less as we go through 2016/7.”

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Law Society response to SRA statement on regulatory independence

Law Society chief executive Catherine Dixon said:

“We support independent regulation. Regulation is about the minimum regulatory rules which should apply to the whole market to protect consumers. This is very different from professional standards of behaviour, conduct and ethics which should be the responsibility of the profession as they are best placed to raise these standards.

“There is an opportunity to put in place better and simpler regulation which applies to all legal services, as currently many legal services providers are not regulated. This means that purchasers of some legal services are not protected.

“Currently the regulatory maze is complex. There are numerous regulators of legal services and there is an opportunity to consolidate to save cost. There is also confusion because currently there is a very broad definition of regulation which includes regulatory rules, professional standards and conduct, ethics, entry into the profession and awarding the professional title.

“Paradoxically, the most qualified and trained are the most regulated; the least qualified and trained are not regulated. This is a mistake. There is an opportunity to redefine what regulation should cover to ensure that it is simple and better, and applies to all legal services. Regulation should not include professional standards and conduct, nor entry into the profession and awarding a professional title. In order to drive professional standards the responsibility needs to be with the profession. This will ensure that the reputation of the profession at home and internationally is secured and that England and Wales remains the jurisdiction of choice and the legal profession is seen to be independent from Government, enabling it to uphold the rule of law.”

4 February 2016

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Law Society statement on scrapping of criminal courts charge

Law Society president Jonathan Smithers said: “The Law Society has consistently raised grave concerns publicly and directly with government about the threat posed to fair trials by the criminal courts charge. This fee created a perverse incentive on those accused of wrong doing to plead guilty when they were not because they could not afford to pay these often high and disproportionate fines.

“We welcome the decision by the government to scrap the unjust criminal courts charge, which we have lobbied against since its introduction earlier this year. We are pleased that our concerns have been listened too.

“We further welcome the announcement of the review of court-ordered fines and will consult with solicitors to inform our contribution.”

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Law Society will strongly oppose measures to restrict use of in-house advocates

Law Society will strongly oppose measures to restrict use of in-house advocates

Clients should be able to choose which lawyer they want to represent them in court, the Law Society said today.

Responding to a Ministry of Justice (MoJ) review of criminal advocacy, the Law Society said it was strongly opposed to a suggestion that instructing an in-house advocate represents a conflict of interest.

The Law Society emphasised that solicitors have an obligation to act in the best interests of their clients, which means advising on a range of issues, including advocacy options. Many clients choose to instruct a solicitor-advocate to represent them because they know the client and understand their issues and concerns.

Welcoming the opportunity to focus on ensuring the quality of advocacy and that clients have the right to choose the advocate who represents them, Law Society President Jonathan Smithers said: “Restrictions on in-house advocacy by suggesting that a conflict of interest arises, would limit, rather than increase, client choice, and may stop clients from choosing the advocate they would wish to represent them in court. We wholeheartedly support the principle that advocates of the highest quality are available for clients, and this includes solicitor advocates.

“If the Government decides that a conflict of interest exists, this would have profound implications for every decision a solicitor makes on a client’s case which could increase the cost of litigation. ”

The Bar Council has also stated its opposition to restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases.

Highlighting the importance of client choice, the Society expressed concern that the consultation did not address the operation of the “cab rank rule” and the returns policy of the bar, which occurs when a solicitor instructs an external advocate, and the selected advocate becomes unavailable at short notice, so a different advocate is sent to Court, chosen not by the client but by the Clerk to Chambers. This choice may or may not be appropriate, given the nature of the case.

Responding to a proposal for a new statutory ban on referral fees, the Law Society emphasised that it supports the existing regulatory ban on referral fees.

Law Society President Jonathan Smithers commented: “Although we see no need for a statutory ban, we would not oppose its introduction.”

The Law Society supports proportionate measures to enhance and assure quality of advocacy. However, given the imminent launch of the Quality Assurance Scheme for Advocates (QASA), the introduction of a proposed Crown Court panel scheme represents unnecessary duplication. The Society also strongly objects to the suggestion that the number of advocates qualifying for the panel should be limited. The imposition of a panel with restricted membership could expose the State to allegations that it was creating a two tier system.

Law Society President Jonathan Smithers added: “Any restriction purely based on numbers would bear no relation to the quality of the advocates, which is a stated aims of these proposals and would further limit not enhance client choice. “

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Law Society slams personal injury claims limit rise

The Law Society has criticised a government plan to raise the small claims limit for personal injury claims to £5,000 and stop compensation payments for road traffic ‘minor’ soft tissue injuries.

Responding to the proposals Law Society President Jonathan Smithers said:

“The Law Society is gravely concerned that these proposals will completely undermine the right of ordinary citizens to receive full and proper compensation from those that have injured them through negligence. These proposals will stop people obtaining legal advice for all personal injury claims below £5,000 and stop people claiming for often debilitating injuries arising from road traffic accidents if these injuries are considered minor.

“This is a fivefold increase in the present level of cases currently within the small claims procedure, benefiting those who have negligently harmed people and will result in more people trying to work their way through a complex court system without any legal advice. People recovering from their injuries will have to bring claims as litigants in person (without any legal advice) and this can be very unfair because those defending the claims can often afford to pay for legal advice. This therefore undermines ordinary people’s ability to access justice. Especially if defendants simply deny liability forcing people to fight through the courts without legal help.

“Personal injury claims, even lower value claims, can include serious injuries arising from the fault of an employer or other road traffic accidents where legal rights can be very complex and the injuries caused debilitating. A new limit of £5000 will mean personal injuries including facial scarring would be considered as ‘small claims’. This is totally unacceptable.

“These proposals are not, as stated, about stopping fraudulent claims. Fraudulent claims are clearly repellent but they should be dealt with by targeting the fraudsters and not the vast majority of honest claimants who have been injured and bring genuine claims.

“We await the detail of the Government’s proposals. And we will be responding to the consultation robustly.”

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