Compromise by Saleem Khalid

Robert Louis Stevenson said that “Compromise is the best and cheapest lawyer”.  Nevertheless, we are often used in order to effect a compromise.  Sometimes, the attempt to settle per se becomes the source of litigation and so it was in last month’s case of DB UK Bank v Jacobs Solicitors (2016) EWHC 1614. The main proceedings entailed the Claimant Bank bringing a claim... [Continue Reading]

When is a Claimant liable for pre-action costs? by Zachary Bredemear

Section 51 of the Senior Courts Act 1981 confers discretion on the court in respect of “the costs of and incidental to all proceedings”. It has long been understood that the reference to costs “of and incidental” to proceedings covers pre-action costs. A recent decision illustrates how the jurisdiction to award pre-action costs works in practice and highlights the differenc... [Continue Reading]

Friends become Enemies aka The Dangers of Free Advice by Saleem Khalid

  We were often warned against giving legal advice to our friends.  As professionals, if we give advice of a professional nature, there is (surprisingly to me) a distinct possibility that it will be relied upon.  This accords with the well-established Hedley Byrne doctrine of liability for the assumption of responsibility.  When giving advice, this liability can arise even if w... [Continue Reading]

Property fraud - liability of seller's solicitor to innocent buyer by Andrew Spencer

Purrunsing v A’Court & Co and House Owners Conveyancers [2016] EWHC 789 (Ch) is the latest case concerning conveyancing solicitors’ liabilities towards innocent victims of property fraud. It considers the question of the purported seller’s potential liability to an innocent purchaser and how the nature and extent of the test for relief under Section 61 of the Trustee Act 1925... [Continue Reading]

All's Well That End's Well? by Katie Ayres

    The Court of Appeal recently handed down judgment in Bacciottini and another v Gotelee and Goldsmith (a firm) [2016] EWCA Civ 170. Bacciottini turned out to be one of those cases that was far more simple than it first appeared (and in the end became all about the costs of the litigation which, as usual had taken on a life of its own). Davis LJ’s judgment goes ‘back to ba... [Continue Reading]

Crystal ball gazing: how does a judge assess loss of chance? by Karen Shuman

You can prove that a past event has happened but you cannot prove that a future event will happen. When the actions of a third party are relevant all that can be done is to evaluate the chance of that event happening. So when a claimant has proved as a matter of causation a real or substantial chance rather than a speculative chance of an event or events happening how does a court evaluate that lo... [Continue Reading]

Liability of third party funders / coverage re. costs in PL policies by John Ross QC

The Court of Appeal handed down a judgment in the case of Legg & Ors v. Aviva [2016] EWCA Civ 97 yesterday. The case concerned the scope and application of the rule relating to a party’s ability to secure an adverse costs order against a third party who funded the unsuccessful claim by a claimant /defence of a defendant.  Additionally it concerned the proper approach to the interpre... [Continue Reading]

Aspect Contracts – Adjudication Assessed… by Saleem Khalid

http://www.hireright.com/blog/wp-content/uploads/2009/11/background-screening-adjudication.jpgAspect Contracts – Adjudication Assessed…       The Supreme Court finally had an opportunity to consider the adjudication regime in the case of Aspect Contracts (Asbestos) Limited v Higgins Construction Plc [2015] 1 WLR 2961.   Although this case is from as long ago as 2015, I had to cite it in Court last week and remembered that it was one that I should have inclu... [Continue Reading]

Caught out by the court fee: a forewarning on issuing claims protectively by Max Wilson

Facts The case of Richard Lewis & Others v Ward Hadaway [2015] EWHC 3503 (Ch) concerned 31 professional negligence claims brought against a firm of solicitors relating to conveyancing transactions. In the pre-action correspondence, the individual claims were each valued in the hundreds of thousands with a collective worth of £9 million. However, when the Claimants’ solicitors f... [Continue Reading]

Professionals, allegations of fraud, and witness credibility by Andrew Spencer

The headline outcome from Mansion Estates Ltd v Hayre & Co (A Firm) (2016) is HHJ Saffmann considering that it is no less “inherently improbable” that a solicitor would set out to mislead the court than any other person, and going on to find that the Defendant’s documents were “materially compromised”. This was not a case where the judge could find one party had &... [Continue Reading]

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Professional Disciplinary News

New chambers' supervision strategy launched

From January 2014, all chambers will be required to participate in new supervision arrangements, set out by the Bar Standards Board (BSB) today.

Under the new scheme, the BSB will assess how effectively chambers and sole practitioners are managing potential risks such as ineffective governance and inadequate pupillage training.

Those identified as 'high risk' will be supported by the BSB to reduce the likelihood of serious problems occurring. Well-run chambers, which set out and comply with clear policies on matters such as complaints handling and pupillage training, will gain a low risk rating and will have little contact with the BSB. This means that resources will be concentrated on those who need it most.

Read more:

https://www.barstandardsboard.org.uk/media-centre/press-releases/new-chambers-supervision-strategy-launched/

 
LeO succeeds in court in contempt action against solicitor
In only the fourth action of its kind a court found a solicitor to be in contempt for failing to hand over files following a request by LeO. Such requests must be complied with by all regulated legal professionals. Read more at http://www.legalfutures.co.uk/latest-news/solicitor-found-contempt-following-legal-ombudsman-enforcement-action.
SRA to drop reporting requirment for non-material breaches
The requirement on law firms to report non-material breaches to the Solicitors Regulation Authority (SRA) is set to be ditched in time for this year’s annual information submission - read more at: http://www.legalfutures.co.uk/latest-news/sra-ditch-reporting-requirement-non-material-rule-breaches
 
High Court upholds hard line on dishonesty in dismissing appeal by nurse
We have all heard of misdemeanours at office parties going horribly wrong or the odd white lie on a CV unravelling with disastrous effect. In the workplace where the relationship of trust and confidence between employer and employee is paramount it is easy to see why dismissal usually follows from an invented degree or reference. However in the context of professional discipline, does dishonesty in the employment relationship mean a professional is unfit to practice and a risk to the public? Yes said the high court in no uncertain terms.
A nurse who was found to have lied on her application form about her previous employment was struck off for dishonesty. In Kibe V Nursing & Midwifery Council (2013) the nurse appealed against that decision on several grounds including an argument that being dishonest did not necessarily mean she was unfit to practice. The High Court did not distinguish between the dishonesty in her actions towards her employer and her actions towards patients and found that the dishonesty had clearly put the patients at risk and showed a reckless disregard for the patient safety: QBD (Admin) (Holman J) 03/05/2013 http://www.lawtel.com/UK/Searches/5101/AC9501956.
 
Dust off your kid gloves
BSB report confirms that litigants in person who do not understand the system are most likely to make complaints against barristers.
In a recent trends report based on data from the last quarter of 2012 the BSB reported that litigants in person in civil proceedings comprised 20% of the complaints that were made. The reasons behind this alarming statistic appear to be that litigants in person frequently do not understand the legal system and this results in complaints being made of dishonesty and misleading the court against barristers.
The report was consistent with previous findings from 2011 that concluded that where a litigant in person has not understood the adversarial nature of the Courts, the likelihood of a complaint being made against a barrister increases.
The number of members of the public representing themselves in court and at tribunals has increased as a direct result of reforms to legal aid and this in turn has led to a rise in the number of complaints received by the BSB from litigants in person. It is likely there will be further increase in litigants in person in civil proceedings due to further reductions in legal aid.
Barristers have a duty when appearing against a litigant in person to explain the court process to them. Most barristers will have had experience of litigants in person refusing to talk to them outside court. This can make it very difficult to do anything to ensure that the litigant in person gets an explanation of how the case is going to proceed. The only option for many barristers facing a litigant in person is to dust off the kid gloves and try to handle the situation as impeccably as they can.
Some help may be at hand to prevent the number of complaints spiralling. The Bar Council has this week published guidance to help litigants in person familiarise themselves with the legal process and prepare their case to help the public but also reduce the amount of unnecessary complaints against barristers. The Guidance can be found at http://www.barcouncil.org.uk/instructing-a-barrister/representing-yourself-in-court/.
Bar Standards Board Head of Professional Conduct Department Sara Down said: "That so many of allegations from litigants in person are dismissed due to insufficient evidence of any breach serves to show just how confusing and unfamiliar the legal process can be for members of the public. We welcome the Bar Council guidance which will help litigants in person better navigate the legal system."

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