Europe’s legal profession made a significant breakthrough last week when European Commission president José Manuel Barroso agreed to establish a special post of EU Commissioner for Justice, Fundamental Rights and Civil Liberties. Barroso made the concession to help secure the backing of liberal MEPs for his reappointment, which was confirmed on Wednesday. The announcement does not, however, herald the establishment of a separate directorate general for justice, for which the Council of Bars and Law Societies of Europe (CCBE) has been lobbying. Barroso aims to establish a dual commissionership within the existing DG Justice, Freedom and Security portfolio. Even though the latter DG has ‘justice’ in its name, it has long been perceived as preoccupied with the security and prosecutorial aspects of its brief, in particular immigration. The CCBE has warned of a ‘justice deficit’ unless a separate DG is created. With the anticipated introduction of the Lisbon Treaty, it has stressed, work on justice will increase in importance, because the treaty offers greater impetus for judicial cooperation in criminal and civil matters, and sets an objective of adopting measures to facilitate access to justice. CCBE secretary-general Jonathan Goldsmith welcomed the concession but said the body will continue to press for a separate DG Justice. Goldsmith fears a dual commissionership sitting atop a combined administrative staff within the existing DG could be a ‘recipe for conflict’. Alison Hook, head of international at the Law Society, also welcomed Barroso’s announcement. ‘If you have someone who is responsible for something [Justice] in Europe, it gets more attention,’ she said. ‘It’s a step forward.’
As the solicitors in Buxton v Mills-Owens  EWCA Civ 122 who stood to lose all profit costs, the Court of Appeal’s decision that we terminated our retainer with our erstwhile client Mr Mills-Owens with good reason was a relief (see Law reports). We had been instructed to put points to the court, which were in an administrative law context unarguable, and we and counsel had declined to do so. It was, however, hardly a surprise, as the decisions to the effect that it was not good enough reason to break a retainer to decline to do something one considered improper that we appealed struck one as unlikely to survive in the appeal court. Happily, the Law Society thought so too, and we are grateful for its support of our case on that. However, the more interesting stone that did not get turned related to the underlying nature of the solicitor-client relationship. The appeal court affirmed, but without analysis of the background to the rule, that a solicitor’s retainer is an ‘entire contract’. Conventionally, that means payment only on completion of the job, like the seaman in Cutter v Powell, (1795) 6 Term Reports 320, who died en route and thus failed to complete his agreed voyage. His widow failed to claim for any of his wages. This harsh rule has been ameliorated over the years – but apparently not in the case of solicitors who wrongly break retainers. Serious problemsThe reaffirmation of the concept of ‘entire contract’ without considering the serious problems to which this gives rise is unfortunate. The court had an excellent opportunity to do so. There has been judicial criticism of the ‘entire contract’ rule from the 1870s onwards, most recently by Mr Justice Lindsay in Angelo Perotti v Collyer Bristow  EWHC 25 (Ch). From a solicitor’s point of view ‘entire contract’ is a Sword of Damocles, such that if one does err in breaking a retainer – one’s reason was not good enough – one is entitled to no costs at all. This leaves solicitors in the unsatisfactory position of having to ‘follow instructions’ against their better instincts for fear of the sword falling. While sympathising with our concerns, the Law Society did not consider the entire contract point needed resolving, as it could be dealt with in terms of business. In the light of the appeal court judgment we will take (yet another) look at our terms of business to ensure that there is no prospect of their being construed as an entire contract and in the event of breach, damages are limited to losses suffered. But even then, situations may arise – for example starting very urgent work for someone without the opportunity to sign terms of business – where this is not practicable. Indeed it is precisely situations such as this which can land one with a difficult client or circumstances which were not as they first appeared. The entire contract rule and prospective loss of all profit costs in case of wrongful breach of a retainer is not covered at all in the Solicitors Code of Conduct. One trusts that the Law Society may consider releasing a practice note to help solicitors avoid the trap into which we fell – and from which we had to extricate ourselves by pursuing two levels of appeal from the costs judge. Loss of all profit costsWe said ‘entire contract’ is a label to a committed and continuing relationship between solicitor and client, but not one where breach should mean the loss of all profit costs. We said the circumstances were like Taylor v Laird (1856) 1 H&N 266, where a captain employed to explore and trade on the River Niger had refused to go further than a particular trading post, but succeeded in claiming his fees on the basis that these were payable on a monthly basis. And similarly, we argued that our fees accrued as we spent time, as is normal with litigation retainers. Embarking on High Court litigation does indeed bear close parallels in other ways with the hazards of exploring Africa in the 19th century. Richard Buxton heads a small firm in Cambridge specialising in environmental and public law
Leon Silver, London I read the articles by Lucy Scott-Moncrieff and Adam Makepeace with interest (see  Gazette, 11 March, 12). I was formerly a sole practitioner for over 20 years, involved in mental health work all that time. I have been working with Duncan Lewis as a freelance consultant mental health solicitor for two years. Practitioners are not to blame for the increasing demands and constraints of legal aid practice. These are politically driven. All of us are trying in our different ways to make it work. I suggest that the issue we now need to press, following the transformation of the LSC into an executive agency of the Ministry of Justice, is that pointed to by the House of Commons Public Accounts Committee. PAC chairman Edward Leigh MP noted that the LSC lacked the basic information about the costs and profitability of law firms which would enable it to know whether it had set its fees at an appropriate level. We cannot allow the MoJ to continue to operate in wilful ignorance of financial realities – and we need to make sure our legislators remain conscious of these, as well as of underlying legal, social and political imperatives.
In his first speech on criminal justice since taking office, justice secretary Ken Clarke yesterday laid out his plans for the reform of the courts, legal aid and sentencing.First, he addressed proposals announced last week to close almost a third of the country’s courts, explore alternative methods of dispute resolution, and use technology to avoid people having to attend court for routine matters. The driver for this is not to improve access to justice or outcomes, but ‘financial reality’ – it’s cheaper. On legal aid, Clarke confirmed that the government will be looking to cut eligibility and fees, candidly admitting ‘we cannot…afford the system we’ve got’, where £38 per person per year is spent on legal aid. He wants to see greater use of mediation in family disputes, and the Ministry of Justice has launched a review looking at how the family justice system can provide a better service for less money. Prisons, says Clarke, are costly and ineffectual, so he wants to find ways to reduce the future prison population and cut reoffending. The government’s ‘rehabilitation revolution’ envisages: prisons that are places of punishment; education; hard work and change; and rigorously enforced community sentences that punish offenders but also get them off drugs and into work (what work? You might ask, but that’s a different debate). Part of the government’s policy will be to get independent organisations involved in reducing re-offending, and paying them to keep offenders away from crime. Announcing a review of sentencing policy to introduce minimum and maximum sentences, and improve the effectiveness of community penalties, Clarke called for ‘more intelligent sentencing’ that will seek to give ‘better value for money’. However he warned: ‘I certainly cannot promise that we will be investing vast amounts of money in non-custodial sentences.’ Despite Clarke’s rhetoric about going back to first principles – punishing offenders, protecting the public and providing access to justice – the golden thread running through the speech was the pressing need to save money. As we know, nearly every government department is expected to have to cut its budgets by around a quarter – an unprecedented amount. With the constant references to cost-savings, Clarke’s speech did appear a recipe for justice on a shoestring, with the government deluding itself into thinking it can ‘spend less and do things better at the same time’. Clarke reassured listeners: ‘Spending less must not mean damaging criminal justice and if we are sophisticated and intelligent in what we do we will not cause harm.’ Sophisticated and intelligent, the MoJ? We shall see.
Every couple of years, legal aid administrators from around the world meet with concerned academics. In June, they gathered in Helsinki. This was less eventful than the previous conference in New Zealand. There, a government minister used his welcoming speech to announce the inquiry that led to the demise of the host organisation and its chief executive. These International Legal Aid Group (ILAG) conferences, socially pleasurable for delegates other than those given notice of their departure, have aided communication and the spread of ideas for almost 20 years. They also provide a good indicator of what is happening around the world. The major change from previous years was the silence of the English. Since ILAG started meeting in 1992, our Legal Services Commission and Ministry of Justice have been big players. Steve Orchard, the former and still revered chief executive of the Legal Aid Board, attended regularly. Hitherto, at some stage in the proceedings, the English delegation stood up to inform their audience of the latest developments in franchising, competitive tendering, CLACS, CLANS (once touted bodies whose initials no longer merit translation) and the work from the Legal Aid Board/Legal Services Commission in-house research arm. In 2007, the government even sent solicitor general Vera Baird to attend the ILAG conference in Antwerp. Alas, we have joined our predecessors, the Americans, as countries that once led the world on legal aid developments. There is little chance of spinning the current cuts as anything other than a slashing of entitlement to the poor and powerless. Wisely perhaps, no English official tried to do so. In our absence, the Scots emerged in full force. Not without schadenfreude at the sad fate of their cousins south of the border, the Scots set out how they had been able to control their budget and extend eligibility. And they had a point. The Scots are hoping to deliver their cuts without the draconian slash-and-burn tactics adopted by Kenneth Clarke. Their line is that you can reduce expenditure but not services. In consequence, few Scottish lawyers are great fans of the Scottish Legal Aid Board, which has been happy to squeeze remuneration – use a few public defenders to encourage the profession to keep in line; and tighten up on merits tests for legal aid. However, Scottish managers claim to have won a significant battle in getting the Scottish government to look at legal aid as an element within the whole justice system and one which has identifiable social and economic benefits. Notably, they have avoided, at least to date, the siren calls of grand gestures like franchising and competitive tendering that so seduced the English without delivering very much. The conference revealed another new development. The 86 delegates came from 26 countries. Legal aid may be on the ropes in countries such as the US, Canada, Australia and the UK but, elsewhere, albeit from a low base, others are hastening to build their legal aid provision. Brazil, for example, is expanding its national network of public defenders at a rapid rate. China was represented in force at the conference. The stimulus for many of these other countries is, in one way or another, human rights and the standards of international human rights treaties. Brazil has expressly enacted a statutory commitment to defence of ‘the fundamental rights of the needy encompassing individual, collective, social, economic, cultural and environmental rights’. For countries in, or aspiring to join, the EU, there is the extra incentive to meet requirements for defence rights in criminal cases because of the EU programme to protect the rights of suspects and defendants. This was one issue on which the otherwise contented Scots were on the back foot – a recent Supreme Court decision has required them belatedly to establish a police station duty solicitor scheme. The European Convention has, of course, provided some measure of defence for criminal and public law from the current round of English cuts. Overall, international conventions on fair trial rights are beginning to play a larger role both in the expansion and reduction of legal aid services. Some of the most interesting Helsinki discussion related to the use of new technology and the web. The Dutch government has even invested in a consortium of organisations that run a website named Innovating Justice. This is designed to keep the Dutch at the cutting edge of new developments in the delivery of legal services. Even more interesting is the development of various forms of online dispute resolution (becoming known as ODR), where the medium becomes the message: the net provides the resolution of the dispute. Understandably, the US leads the world in this area. You can get online legal assistance with sites such as Legal Zoom offering document preparation. Chicago-Kent University has developed a programme, A2j, which goes one step beyond and helps you, should you wish, to build a programme that takes the user through a legal process (for example, changing their name). This provides an avatar to guide you. At the moment, she is a static cartoon rather than the fully mobile versions that infiltrated Pandora’s Eden in the movie, Avatar. However, things will clearly develop that way. Helsinki is a pretty agreeable location in which to spend a couple of days reviewing the global direction of legal aid. Finland actually has an excellent legal aid scheme that combines salaried and private providers. Publicly funded legal services have been delivered in Helsinki for over 120 years, probably longer than anywhere else in the world. For the silenced English, attendance provided all too short a respite from the chill winds that cross our once fertile, but now barren, legal aid landscape. Join our LinkedIn Legal Aid sub-group Roger Smith is director of the law reform and human rights organisation Justice
When Sir Michael Bichard was finalising his report on child protection measures after the Soham murders of 2002, he took some trouble to ensure the institutions he was about to criticise would give his recommendations a fair wind. On the BBC’s Law in Action this week, he told me how important it was for the immediate responses to be as supportive as possible. If that was what Sir Scott Baker and his colleagues had hoped for when they published their 486-page review of extradition law last week, they will have been disappointed. ‘We don’t just disagree with this review, but are completely baffled by it,’ said Shami Chakrabarti, director of the human rights group Liberty. ‘Frankly, the Baker report is inexplicable,’ added David Davis MP. ‘I am concerned that the extradition review has not shed any light on the ease of extradition,’ concluded the chairman of the Commons Home Affairs Committee, Keith Vaz. Let me see if I can help. There is some concern that we in the UK are too willing to send our own citizens for trial or punishment to countries that would not send their citizens for trial here. In Chakrabarti’s colourful phrase, ‘it’s time we stopped parcelling people off around the world like excess baggage’. The Scott Baker review was asked to consider two main areas of concern; the US and Europe. Critics maintain that it is easier for the US to get someone extradited by the UK than it is for us to get someone handed over by the Americans. On Europe, people are now beginning to realise that a traditional extradition system was replaced in 2004 with informal arrangements under which an arrest warrant issued by any one of the 27 EU states is valid and enforceable in all of them. These arrangements require mutual recognition of legal systems that the UK would certainly not recognise as providing the minimum standards and safeguards. The campaign to reform the extradition treaty with the US is backed by commercial lobbying groups. This should come as little surprise; in recent years, the US has sought the extradition of bankers and businessmen for fraud-related offences. As these individuals were not facing charges under English law, they had every incentive to fight extradition. Discrediting the US-UK extradition treaty in the public’s mind was just one weapon in their armoury. They seem not to have impressed the former Lord Justice Scott Baker and his two colleagues, even though one of them is Anand Doobay, a partner in the solicitors’ firm Peters & Peters, who specialises in representing businessmen facing extradition. The third member of the panel is David Perry QC, who was renowned for his fairness as a full-time Old Bailey prosecutor and who now defends as well as prosecutes. The current extradition treaty between the US and the UK took effect in April 2007. Until then, it is fair to say our respective extradition arrangements were unbalanced. And now? When the UK seeks the extradition of someone in the US, it must provide ‘such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested’. This must be read with the Fourth Amendment to the US Constitution, which says ‘no warrants shall issue but on probable cause’. In summary, a request from the UK to the US must be supported by information – not evidence – satisfying the probable cause test. Because the UK has designated the US under the Extradition Act 2003, requests from the US do not need to be accompanied by evidence either. All that’s needed is information that would justify the issue of an arrest warrant. This is the reasonable suspicion test. The US government believes the two tests are equally balanced, as I reported here in July. Last week, the Scott Baker panel agreed. ‘In our opinion,’ they said, ‘there is no significant difference between the probable cause test and the reasonable suspicion test.’ Any difference was one of semantics rather than substance. What about extradition within Europe? This, says the review panel, is based on ‘mutual trust, not blind faith… The system of surrender is by no means automatic’. But the principle of mutual recognition, as Scott Baker sees it, is that EU member states ‘should not fear the differences between their legal systems and that these differences are not a sufficient basis to justify a refusal to cooperate’. The real problem is that there has been a huge increase in arrest warrants submitted by other member states. While the number of people returned to the UK each year has remained reasonably constant – 63 in 2005 compared with 71 in 2009 – the number of people sent from the UK has risen over the same four-year period from 77 to 699. This is because some states are issuing European Arrest Warrants without considering whether there are more proportionate ways of achieving justice. A proportionality test should be introduced when the opportunity arises, the review recommends, and states should use their discretion in the meantime. The review team’s call for steady improvements at EU level to the working of the European Arrest Warrant – rather than radical reform – has received a broad welcome from Fair Trials International, which has developed from slightly quirky origins into a highly respected source of specialist knowledge. Far from being ‘baffled’ by the review, the campaign group sees it as something to build on. It is more likely to achieve its aims than those who resort to abuse.
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