Wish you were here?

first_imgWhat do celebrities Diana Rigg and Judith Chalmers have in common, aside from being two former glamour pusses of the small screen who are now, shall we say, advancing in years? Answer: they have both had the recent pleasure of being photographed with our favourite outspoken personal injury lawyer, Kerry Underwood, founder of employment and personal injury firm Underwoods in Hemel Hempstead. Underwood met Chalmers (above), who shocked the nation a few years ago by revealing that in 30 years of presenting Wish You Were Here she had never worn knickers, so as to avoid visible panty lines, at a recent star-studded dinner in aid of the Lady Taverners, a charity of which Chalmers is president emeritus. The TV presenter heckled Underwood for only having two ladies on the table he was hosting at the event, though from the look of things she quickly forgave him. His up close and personal encounter with The Avengers star Diana Rigg (note Underwood is once again sporting his favourite – or only? – multi-coloured bow tie) took place at a Royal British Legion function (below). No wonder Underwood is looking so pleased with himself.last_img read more

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High numbers of women and solicitors appointed to judicial posts

first_imgMore than half the candidates selected in the last recruitment round for fee-paid employment tribunal judge positions were women, statistics have shown, while three-quarters of selected candidates were solicitors. The Judicial Appointments Commission today published the statistics for the two most popular selection exercises for fee-paid roles run between April and September 2009. In total, 982 lawyers applied for 128 posts as fee-paid recorders on the South East Circuit, and 624 applied for 36 posts as fee-paid employment tribunal judges. Of those selected for fee-paid employment tribunal posts, 54% were women, while 75% were solicitors and 6% were from a black or minority ethnic (BME) background. In the recorder exercise, 37% of those selected were women, 13% were from a BME background and 11% were solicitors. JAC chair Baroness Prashar (pictured) said: ‘BME candidates have done particularly well in the recorder South East exercise, where they performed better than their numbers in the eligible pool, and I am pleased to see our first applications from ILEX (Institute of Legal Executives) fellows seeking to become employment tribunal judges.’ She said the selection process is ‘open and fair’ and the JAC selected only the most talented from those who applied. ‘Diversity and merit go together, because if the best candidates from all backgrounds apply, we can select the most able to recommend to the lord chancellor for appointment.’ Prashar said the legal profession is becoming more diverse, and the statistics showed that the judiciary is beginning to change too. She said the JAC was doing more than ever to encourage a wide range of candidates from across the legal profession, but it looked to others to help remove barriers that were beyond its control. ‘Solicitors say they want more encouragement from their firms. Women say they want more opportunities for part-time working. ‘We know there is more work to be done to encourage solicitors to apply for some posts, and we are working with the Law Society and others to make that happen,’ she added.last_img read more

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Lawyers warning over family experts fee cuts

first_imgSlashing the fees of social work experts will put vulnerable children at risk and increase delays in the family court, their representative groups have warned. From October 2010, the Ministry of Justice will reduce by around 50% the fees paid to social workers who give independent advice to family courts in public law cases concerning children. Alison Paddle, spokeswoman at NAGALRO, the professional association for children’s guardians and independent social workers, said the fees would be cut from around £50-70 to £30 – the amount paid to CAFCASS social workers. ‘Despite courts relying on their assessments, independent social workers are already the lowest paid of the court’s expert witnesses. Yet it is often their report that draws together and puts in context the conclusions of more highly paid experts,’ she said. She said the fee cut could lead to people leaving the profession, diminishing the pool of experts available, which would exacerbate the already ‘unacceptably long delays’ in cases. A Ministry of Justice consultation is considering the fees paid to expert witnesses, but social workers are not included in it. Christina Blacklaws, Law Society council member for child care law, said there was a real disparity in amounts experts receive, with some getting £300 an hour while others earn much less. ‘It is completely wrong that the fees of social workers, who play an important role in proceedings, are being slashed,’ she said. ‘But let’s not forget that legal aid lawyers are paid a pittance – we get an average of £55 an hour and have huge overheads to cover,’ she said. An MoJ spokesman said that since 2003 Legal Services Commission guidance has said independent social workers should be paid the same rates as CAFCASS pays its self-employed contractors, and it was appropriate to follow those rates.last_img read more

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International document management

first_img Drew Macaulay is director of business development at First Advantage Litigation Consulting In a globalised environment where legal and regulatory matters can involve corporate subsidiaries spanning multiple jurisdictions, moving data from one country to another in order to respond to these matters can lead to significant legal, political and social challenges. The need to collect, review and produce information from multiple jurisdictions is a regular feature of international legal, regulatory and investigative matters. However, legal requirements to produce information in response to proceedings in one jurisdiction often clash with the data privacy requirements of other jurisdictions at both national and supranational levels. For example, a discovery request arising from US litigation may require the production of relevant documents from a company’s French subsidiary, including those containing personal data. The US legal team will then be faced with the EU Data Protection Directive, an instrument concerned with the level of protection of personal data after it has left the EU, and the French Blocking Statute French Penal Code Law No. 80-538, which prohibits a French national or corporation from moving data out of France in response to civil proceedings in another country. As another illustration, if a matter necessitates accessing documents originating in Switzerland, be prepared to face strong data protection laws which apply both to personal data, and to data belonging to other legal entities such as corporations. These types of hurdles are not limited to European countries. Matters involving data in China are affected by the state secrecy law, which prohibits unlawful copying, recording, transmission or storage of state secrets and incorporates a broad definition of such secrets, including ‘secrets in the areas of national economic and social development’ or ‘secrets concerning science and technology’. In Japan, the Personal Information Protection Act of 2003 does not allow acquisition and use of personal data by ‘business operators’ without consent, and contains detailed provisions regarding notification of persons concerned, specificity of purpose and security of data held by ‘business operators’ and third party organisations. In all of the above examples, serious penalties can be imposed on companies which do not pay adequate attention to the rules. However, certain steps can be taken to minimise the risk of these penalties and overcome cross-border challenges. In countries such as France which block even limited transfers of data but have acceded to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, a Letter of Request for evidence can be made by the court in the requesting jurisdiction to the central authority in the jurisdiction in which the data exists. This request must detail the nature of the information that needs to be collected, and will need to be highly specific, listing particular categories of documents, rather than simply a broad request for any documents potentially relevant to the matter. If consent for collection of data from individual employees, often referred to as custodians, is required under local data privacy law, consider asking the local Labour Unions’ assistance in gaining co-operation, which may particularly assist in jurisdictions such as Germany. Be aware that the collection and searching of someone’s personal information, even if it is stored on a corporate laptop or server, can be a stressful experience. Data collection staff who are able to fully explain the processes being used and the reasons why data has to be collected are often very helpful in achieving co-operation, even more so if they speak the same language as the potential custodian which is particularly important in countries such as China and Japan. In some jurisdictions such as France, several copies of the data collected may be needed, notification of collection must be provided to the custodian, and the collection itself may need to be conducted in the presence of a notary or similar figure. Where a particular jurisdiction specifically prohibits the transfer of irrelevant data, or requires that the data disclosed to be limited to only specific classes of documents, it is advisable to employ a specialist legal data collection and processing firm with facilities in that jurisdiction to assist with the management of the documents. Specialist technology and experienced technical staff can efficiently identify those documents likely to be relevant before the legal team conducts a more detailed, manual review. This process may include redaction of specific types of information such as names, social security numbers and other identifying information. Where no appropriate service provider exists in the country concerned, consider using a vendor with the ability to set up a temporary facility on the client’s site or elsewhere in that jurisdiction for that specific engagement. Using this type of arrangement can also be beneficial where corporate clients are concerned about the security of trade secrets or other confidential data. In order to prepare for cross-border information requests the first step is to map out the company’s data. A corporation may have operations in one country, but the data relating to those operations may be in another country – with very different privacy restrictions and regulations. A good understanding of the data locations and the data protection regimes in each relevant jurisdiction will aid decisions on how best to proceed if a need to collect data arises, and whether some or all of the approaches above should be employed. Secondly, understand how the company communicates, internally and externally, and stores its data. Does the corporation use outsourced data storage, ‘cloud’-based email or instant messaging? Where is this information physically held? How would one go about retrieving, searching and reviewing large numbers of these documents if required? As communication technology expands, so too does the complexity of data management. Identifying partners that have specific expertise and technology to deal with these changing information formats, and the ability to deliver services in the relevant locations, can effectively mitigate risk in responding to these complex cross-border information requests. Finally, consider spending some time identifying potential local counsel in the jurisdictions in which the company operates. Local counsel will have detailed knowledge of the regulatory and cultural environment in which a potential collection exercise may take place, which will assist in pre-empting any potential issues. This investment in time will pay dividends, particularly in regulatory matters where the speed and level of co-operation with the regulator could significantly impact the severity of fines levied on the corporation.last_img read more

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Persecution claims are undermined by religious privileges

first_img Charlie Klendjian, solicitor, Hatfield, Herts I’ve known for a while that my BBC licence fee is used for religious proselytising in the shape of ‘Thought for the day’, and now I fear my practising certificate fee awaits a similar fate (Andrea Minichiello Williams, ‘Equality law is victimising Christians’). Ms Williams believes Christians are religiously persecuted, but facts compel me to disagree. The head of the Church of England is our head of state; the Church of England is the only official state religion; 26 bishops sit as lawmakers in the House of Lords as a matter of constitutional right; and Christian schools have exemption from employment law in staff recruitment. If this is religious persecution of Christians, I shudder to think what Ms Williams considers religious privilege. She mentions the ‘victimisation’ case of McFarlane v Relate Avon Ltd, but she does not mention that the judge in that case, Lord Justice Laws, is a devout Christian and churchwarden. I urge your readers to read his excellent judgment, of which the following is a snippet: ‘The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. ‘It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary… The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. ‘If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic.’ Secularism is not anti-religious; it is anti-religious privilege and it is anti-theocratic. Ms Williams is entitled to her opinion that religion and the law make loving bedfellows and she is free to explore that theory. I shall await her postcard from Riyadh or Tehran.last_img read more

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Motorist offered a replacement car

first_imgWhat could be more straightforward? A negligent motorist damages your car and their insurer offers a suitable replacement while your car is being repaired. Is it reasonable to refuse the car and then to hire one from the credit hire company which was given your details by your garage? And if you do that, what loss, if any, have you suffered? In Copley v Lawn [2009] EWCA Civ 580, [2010] 1 All ER (Comm) 890, the Court of Appeal decided that any offer made by the defendant’s insurers must contain all such information as will be relevant to the claimant and his representatives to make a reasonable response, including the cost to the defendant of hiring the car. At paragraph 32, Lord Justice Longmore said: ‘…the general rule that the claimant can recover the “spot” or market rate of hire for his loss of use claim is upheld, unless and to the extent that a defendant can show that, on the facts of a particular case, a car could have been provided even more cheaply than that “spot” or market rate’. In Sayce v TNT (UK) Limited (Oxford County Court, 25 January 2011, Lawtel 16 March 2011), Judge Charles Harris QC heard an appeal from a decision of District Judge Flood, which predated Copley v Lawn. In dismissing the appeal, he boldly declined to follow the reasoning in Copley, holding it to be inconsistent with binding House of Lords authority. He held that a claimant who had unreasonably refused an offer of a suitable replacement car should not recover at all. At paragraph 20, he said: ‘The claimant contended quite properly that she wanted a replacement car. She did not need to hire one. She was offered one free of charge. ‘If she had accepted it she would have had no claim for the cost of hiring [£3,500]. On the finding of the district judge, it would have been reasonable to have accepted TNT’s offer. ‘To put it more firmly, it was unreasonable not to have accepted it. Why then should the defendant have to pay anything at all? ‘The fact that it would have cost it something to provide the car free to the claimant is of questionable relevance, since the question is what sum did the claimant (not the defendant) need to incur. ‘To order TNT to pay that sum, which is the Copley principle distilled, seems more like an attempt to punish a defendant than to provide an answer, which fulfils the elementary rule that the purpose of an award of damages is to place the injured party in the same position as he was before the accident as nearly as possible, viz, in this case with a car for which no rental is payable by her.’ The reasoning of Judge Harris QC may thus be summarised: District Judge Richard Pates sits at Crewe County Court The issue of mitigation was a question of fact, and District Judge Flood had been entitled to conclude that ‘the claimant clearly had all the necessary information to make an informed choice and decided to make a choice which would lead to her incurring and attempting to recover charges of nearly £3,500 when she could have had a car for nothing’ (paragraph 10). If a claimant accepts a satisfactory substitute car from the defendant then there can be no claim for damages because the need for a car has been met (see the rationale of Lord Bridge in Hunt v Severs [1994] 2AC 350 HL at 360, cited with approval by Lord Hoffmann in Dimond v Lovell [2000] 2 WLR 1121 at 1133. Why should the position be different if the claimant acted unreasonably in refusing to accept the substitute car? Failure to mitigate can result in an inability to recover anything at all (Payzu v Saunders [1919] KB 581 CA and The Soholt [1983] 1 Lloyd’s Rep 605 CA). In McGregor on Damages 18th ­Edition at 7-004 it is stated that: ‘The first and most important rule is that the claimant must take all reasonable steps to mitigate the loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which he could thus have avoided but has failed through unreasonable action or inaction to avoid. Put shortly, the claimant cannot recover for avoidable loss.’ In Lagden v O’Connor [2003] 3 WLR 1571 HL, Lord Hope indicated at 1580 that ‘[i]f it is reasonable for him to hire a substitute he must minimise his loss by spending no more on the hire than he needs to in order to obtain a substitute vehicle’. The claimant did not need to spend anything at all. Lord Justice Longmore’s observation in Copley v Lawn that ‘if a claimant does unreasonably reject or ignore a defendant’s offer… he does not forfeit his damages claims altogether’ may not be an accurate summary of the law. The reasoning in Copley appears to confuse the obligation or duty to mitigate (‘where there are choices to be made the least expensive route which will achieve mitigation must be selected’ – per Lord Hope in Lagden supra), with the cost consequences of refusing offers made in the course of litigation (the claimant may be penalised in costs if he only recovers the rate based on the cost to the defendant). It is also inconsistent with earlier authority that a claimant who fails to take a reasonable step to mitigate is debarred from claiming any part of the damage which is due to his neglect to take such steps. The principle of mitigation is that a claimant cannot recover damages for a loss which he could have avoided but failed to. If a claimant is offered a car free of charge to him he can and should avoid incurring the expense of hiring one himself. If the free car is accepted there is nothing to claim from the defendant. ‘What could be more simple, or more reasonable, than to say to a person with a damaged car who needs a temporary replacement: “If the defendant has offered you a satisfactory car free of charge, you should take it”? This, it seems to me, accords both with the law, and with common sense’ (paragraph 21). It will be interesting to see what happens in the inevitable return of these arguments at the county court level. Clearly, the sooner the issue is reconsidered by the Court of Appeal, the better.last_img read more

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Secret police?

first_img Name and address supplied I have just attended a fine lecture by Professor Peter Camp on the new SRA Handbook. It was a sobering experience. Some of the book’s new elements should give rise to alarm. As we already know, unqualified employees are subject to disciplinary proceedings before the SRA. None of the employees at my firm has agreed to this. We were advised by Camp to consider appropriate amendments to contracts of employment to accommodate the possibility. My unqualified employees will not be encouraged by me to accept a contractual obligation to submit to discipline by a regulatory body of a profession to which they have not subscribed and arguably do not belong. I struggle to comprehend under what authority the SRA considers it can interfere in this way in contractual relations between employers and employees.Camp informed us that the SRA will be conducting risk ratings on every firm in the country, but will be keeping the ratings secret. Are we not all data subjects under the Data Protection Act 1998? While there is an exemption for regulatory activity, this only exists to the extent to which the existence of the data protection provisions would be likely to prejudice the proper discharge of those functions. I fail to see how openness on the part of the SRA could be prejudicial to regulation. This secrecy would also appear to offend the spirit, if not the letter, of the Freedom of Information Act 2000. This confers a general right of access to information held by public authorities. I accept that the SRA may not fall within the definition of ‘public authority’ under the act. We will soon have to report each and every breach of the Solicitors Accounts Rules, however minor. This is in addition to the provision of the usual accountant’s report at the end of the practising year. Whether conscientious reporters will be unduly penalised in the SRA’s secret risk ratings may never be known. The SRA should be at pains not to encourage the perception that it is adopting the mantle of a secret police for the legal industry. Protestations of an intention to work with regulated bodies to ensure compliance and good practice are very much less convincing while it chooses to act covertly and thus deny scrutiny of its enforcement decisions. I use the expression ‘industry’ advisedly, for we are all now to justify a sound business strategy to the SRA, which seems to imply profit as the main motivator. This is not what I have taken as my guiding principle during 48 years in private practice.last_img read more

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Trading places with Ken

first_img Obiter called the Ministry of Justice to see if Clarke is inclined to swap the secretary of state grade of Whitehall trappings for a law centre desk in Nottinghamshire, but so far has not received a response. Justice secretary Ken Clarke will not be on the Christmas card list of many legal aid lawyers this year following some remarks in an interview with the International Bar Association. He told the IBA’s head of content, James Lewis, that legal aid lawyers opposing the government’s legal aid cuts are ‘disingenuous and advancing behind a line of women and children’. His comment, implying that lawyers were concerned more about their pay than the cuts’ impact on their clients, prompted outrage. A law centre in Clarke’s Rushcliffe constituency has responded with a challenge to the justice secretary, inviting him to spend a day with the staff – and donate to charity the difference between his daily pay from the annual £134,000 cabinet minister’s salary and that of a law centre worker on less than £30,000. last_img read more

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More bilge from Europe?

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Get your free guest access  SIGN UP TODAY 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 Subscribe now for unlimited access 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 communitylast_img read more

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Lawyer: know thy stuff

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN 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 Subscribe now for unlimited access 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 communitylast_img read more

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