Legal Aid reforms - fundamentally misguided.

I steer well clear of examining political and legal issues in religious or ethical terms.  These are very much matters of personal conviction and opinions differ in the extreme.  However, I was particularly struck by a post on the renowned blog run by Archbishop Cranmer, which you can read here:

Brother Ivo blogs on Legal Aid

 It's difficult for me to add anything much to what is very eloquently set out here.  The Churches have recently pontificated on welfare spending and cuts in benefits.  I suppose to some modest extent there might be some argument that Holy Writ places a burden on society to provide material support to the destitute and deprived, but this falls well short of prescribing the extent of that support and the manner in which it should be delivered.  However, following Brother Ivo's exposition, I can easily see how the Church can properly have major issues about the withdrawal of legal aid from so many areas of our justice system.

I confess that recently I have been distinctly irritated by a few cases where I have encountered legally aided opponents.  Cases where single issues have been the subject of completely unnecessarily wide ranging enquiry.  Cases where applications of no merit whatsoever have been issued and pursued.  However, irritating and inappropriate as these have been, to react by barring access to legal advice to all but the very well off is entirely disproportionate and is entirely counterproductive.

The truth is that the involvement of good lawyers, especially in family disputes, is of immense value in sorting out otherwise intractable problems.  To leave judges and magistrates without any effective access to other team members, who can set to work outside court to enable parties to see sense and negotiate a route out of their relationship, is not going to save money, it's just going to transfer the cost elsewhere.  The cost will now be incurred in a court system which is already desperately under-resourced and unable to provide a proper service.  In one very prominent court, it is already taking at least three months to secure a one hour hearing.  Justice delayed, I remind you, is justice denied.

This doesn't just apply to the legally aided party, by the way.  As unrepresented parties clog up the courts - and they most certainly will do that - the queue the privately paying parties will find themselves in will be that much longer and slower, and already it's too long and slow.  The person paying top dollar for the best legal representation will find that their cases are every bit as slow moving as everyone else's.  Yes, I am carrying on in the frontline of litigation but I can see that it's going to be even more distressing for my clients than it has been up until now.

P.S.  Just to move from the abstract to the particular, there's this post over at Researching Reform:

What happens when.....

This seems to be a real life example of things getting out of control, with no obvious recourse for the parents to help them identify where to turn for advice and help.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Legal ombudsman gives good advice to divorcing couples - shock horror!

A week or so ago, the Legal Services Ombudsman published a report on complaints against lawyers.  Sadly, family law is a major contributor to his case load.  Am I surprised?  Not greatly.  I encounter a good number of indifferent family lawyers.  I have the privilege of presenting training courses for BPP, one of the leading national training organisations, which gives me the opportunity of discussing and passing on to other family lawyers my main concerns.  As is clear from the report, clients are deeply concerned about costsand this is a major source of complaint.  I believe that is all too often insufficient focus by both solicitor and client on managing cases to keep cost to a minimum.

The great news for professional and client alike is that the Ombudsman has published a highly sensible guide to getting the most out of a professional relationship between solicitor and client.  You can find it at this link:

Using a divorce lawyer - ten helpful tips

So I thought I'd have a look at the tips the Ombudsman gives, one at a time, of course.

Tip one.
Consider what you want from the legal process - AND BE REALISTIC!
Sorry to shout but this is important.  The biggest single dispute in divorce usually concerns money.  Your money.  The more of your money you spend in legal fees, the less you get to keep.  Very often a solicitor will be telling a client something the client doesn't want to hear.  The law does not punish one spouse for being bad, nor does it set out to reward the other for being good.  The purpose which the court sets out to accomplish is simply to enable the couple to live separately from each other.  It's a matter of arithmetic and it's a matter of practicalities.  For those who are deeply hurt, this is not what they want to hear.

And that's where problems can arise.  A client can put a lawyer under severe pressure to try to obtain an outcome which is just not achievable.  When costs get racked up and that outcome is dismissed as unrealistic, the client complains.  Both client and solicitor may have to share the blame.  The client has not been prepared to accept good advice.  The solicitor may have been intimidated by the client and persuaded into presenting a case which is just not viable.  Solicitors must have the courage to withstand pressure and be the bearer of bad news if need be.

Where I become decidedly irritated is when I am faced with a solicitor who is doing work which cannot benefit their client but for which someone - quite often the taxpayer, under a legal aid certificate - is paying.  The classic example for me is the lengthy and purposeless questionnaire.  For instance, if the only asset of a marriage is a house and neither spouse can realistically be ordered to pay maintenance to the other, questions about how either of them spends their income are entirely irrelevant.  You can spend hours crafting such a questionnaire but it has no value to the client.  It can be decidedly embarrassing when a judge looks at your questionnaire and simply dismisses it out of hand.

Fighting for what you can't get is emotionally draining, ultimately devastating and a waste of money.  If that's your position, your solicitor is doing you the biggest and most altruistic favour by telling you early on, before the damage is too great.




Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Pay peanuts, employ......?

I have to say that it was with complete incredulity that I read an advert in the Law Society Gazette last week.  I recognise that I am a little unusual in that I take the time to read the magazine.  So many lawyers I know seem to take a particular pride in not having the time even to remove the wrapper.  Unfortunately, that risks meaning that the recipient also doesn’t have the time to keep up on changes in the law and practice, which is bad news for their clients.

Anyway, there was this job ad.  I wasn’t really looking for a job, so I guess that I just stumbled across it.  It was placed by a company called CrimeDirect Ltd.  It’s situated in North Shields in the North East, so I did wonder just what direct crime it was in the business of providing.  Actually they serve criminals rather than supplying crime, directly or otherwise.  And, I hasten to add, those who are merely suspects and who may be, and often are, entirely innocent.  Specifically, they have the contract to advise persons arrested and being held at a police station.  The advice is provided over the phone rather than face to face.

It’s clearly a demanding job.  They want duty solicitors and accredited police station representatives to apply.  As I used to have the dubious distinction many years ago of doing just that myself, I read on.  The applicants will work three shifts per week.  Each shift lasts a full 12 hours!  Presumably there will be meal and comfort breaks, though this isn’t specified.  Shifts run from 9 am to 9 pm and from 9 pm to 9 am and you have to be prepared to work both – you can’t just opt for one or the other.  The service has to run 365 days of the year, so you have to be prepared to work on any bank holidays, including Christmas, if that’s when you’re rostered.

All this is, just as I say, very demanding.  As a solicitor or accredited representative you will have certain educational qualifications.  A solicitor will have a degree.  A representative will have passed what I rather hope is a rigorous written examination and practical assessments.  If you a degree, presumably you have student debt.  So what can you expect for this demanding job, supported by your previous studies and qualifications?

£15,000 per annum.  That equates to 8 quid an hour.  For enormously unsocial hours and conditions.  The national minimum wage, I would remind you, dear reader, is just over £6 per hour.

The candidates will be expected to advise suspects on matters related to their freedom from imprisonment, so that’s a huge responsibility.  If a suspect exercises his/her right to remain silent after taking their advice, that advice could potentially be picked over at length in court.

I don’t know which is worse – that someone actually advertises this salary, presumably in the belief that it constitutes fair remuneration – or that they may actually find staff prepared to work on these terms.  Just what will they be getting for this money?

Back in the early 1990's, there was the Royal Commission on Criminal Justice.  It was instituted after a number of prominent miscarriages of justice.  It identified various common features of these - a failure by the prosecuting authorities to give proper disclosure, a lack of legal advice in custody, forced or false confessions.  So the government of the day responded by limiting the obligation on the prosecution to provide disclosure and reducing access to legal advice.  Oh, and altering the right to remain silent by qualifying it.

And now, without enacting anything, the legal advice to be given may be by an underpaid member of staff at the end of a 12 hour day, having worked all through the night.  Perhaps even after a switch between an early shift and a late shift, with whatever effects that has on mental alertness and functioning.

I gave up criminal law and legal aid work over 10 years ago - why?  Well, for one thing because my family had to put up with the disruption to family life of my being on call and being called out at all hours of the day and night, and the money just didn't make it worth it.  But that doesn't mean that I stopped caring about justice, and there'll be even less of that around if this proves to be a "success"!

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Good news - judges like to do the right thing. Edgerton v. Edgerton

 There's been one of those odd and complicated divorce cases in the Court of Appeal recently.  It's all to do with a husband declaring that a significant part of the family assets, belong to his mate.

First the husband asserted that he owed his friend Mr. Shaikh a shed load of money.  Then the story changed - actually Mr. Shaikh and he were in partnership and that a large sum of money and a house were actually partnership assets.  Despite the fact that the wife had got an undertaking from the husband that he wouldn't dispose of his interest in various assets, including the "partnership" assets, the husband's friend began an action against the husband, claiming repayment of the debt.  Then he discontinued that action and began a separate one, claiming that his partnership with the husband was dissolved and seeking an account of the partnership assets.

Withdrawing legal aid - stupid or what?

So now Mrs. Edgerton faces her first problem.  She has legal aid for the divorce proceedings but the partnership action is in the High Court Chancery division.  At one stage it is joined with the ancillary relief application but for unexplained reasons this is changed and the hearings are separate.  It is not clear why, but she didn't have legal aid for the Chancery action.  Legal aid to argue over the property division but no legal aid to decide how much property there is to divide.  Penny wise, pound foolish!

As a result, Mrs. Edgerton loses the Chancery action and a large slice of the matrimonial pot looks as if it's going to disappear to the husband's close friend and associate.

However, the judge in the divorce proceedings, somewhat surprisingly, asserts that he isn't  bound by the decision of the chancery court as to the partnership action.  The order in the chancery action had been by consent between the husband and his friend as the wife's defence of it had been struck out for failure to comply with directions. In other words, the wife had unsurprisingly been out of her depth, she didn't have legal assistance and the husband had taken full advantage of this.  As a result, the family judge makes an injunction which effectively prevents the chancery order being implemented, so the husband and his friend appeal against the injunction to the Court of Appeal.

At the Court of Appeal

Now it doesn't require a great deal of legal knowledge to appreciate that the wife's case in relation to the chancery order has problems.  There aren't different High Courts - there's just the one and it simply has different divisions.  That must and does mean that a decision of one division must bind all the other divisions.  That's why in relation to disclosure issues, husbands have tended to go to the Queen's Bench Division for orders rather than the Family Division - the judges have a different approach and can still bind the family judge.  So this was an appeal which was bound to succeed and it did.

But the Appeal judges clearly couldn't stand the thought of clear injustice being done.  They thought long and hard and came up with a doctrine, based on uncontested facts, which would give the wife a remedy.  They then set a timetable with detailed steps which would enable her to access that remedy.

So good news!  Judges are hostile to injustice and will exercise their intellects and legal knowledge to secure justice for a litigant wherever possible.  All is not yet as bad as it could be.






Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.