Monthly Archives: April 2013

1 Essex Court will be participating in the London Legal Walk on the 20th June 2013

 

Our page: http://uk.virginmoneygiving.com/team/1EC

Chambers will be participating in this years legal walk. We are raising funds for the London Legal Support Trust, the Free Representation Unit and the Bar Pro Bono Unit.

We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and disabled and fighting exploitation.

We also know how short they are of the funds to continue that work

Our walkers are: Duncan Macpherson, Graeme Kirk, Jamie Williams, Genevieve Parke, Pramod Joshi, Andrew Wilson, Christopher Kelleher, Duncan Richards, Ian Hogg, Bradley Morley, Lloyd Parker, Varun Zaiwalla

Please donate as generously as you are able

Many thanks for your support

Through Virgin Money Giving, you can sponsor us and donations will be quickly processed and passed to charities. Virgin Money Giving is a not for profit organisation and will claim gift aid on a charity’s behalf where the donor is eligible for this. We really appreciate all your support and thank you for any donations.

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LASPO in Practice

The 1st April 2013 saw the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) come into force. Family law practitioners will no doubt by now be very familiar with Schedule 1, and Parts 1 and 2 of the Act, which define the scope of the work for public funding is still available. What will be interesting to observe, is how LASPO will impact upon ongoing and future cases.

One effect that has occurred, as it may have been expected, is the increase in private law applications that were made ahead of 1st April 2013. According to CAFCASS figures released yesterday, there was a 10% increase of cases between April 2012 to March 2013, in comparison to figures between 2011 to 2012. *

Another possible effect may be seen in the way pre April 2013 cases are handled during proceedings. Where a contact case for example, is going well and there appears to be ongoing agreement between the parties, practitioners may nevertheless feel the need to keep a case within the court arena for review. Judges may be keen to make final orders, but keeping the matter open for review would mean the client is still entitled to public funding should a dispute later arise and the matter needed to return to court. Taking this approach could see the average length of private law proceedings increase.

It will be interesting to monitor the trends post April 2013. The Cafcass Chief Executive Anthony Douglas, has said:

 

Cafcass expects to see a drop in applications over the first few months of the 2013/14 financial year, following the changes. Based on patterns observed from previous policy changes within the family justice system, it is anticipated that levels will normalise after that.”**

Whether that prediction proves correct is yet to be seen. In any event whether it is as a result of an increase in litigants in person, or more review hearings, proceedings may start to take longer to conclude and if so, it will be important that the courts are in a position to bear the impact of such changes.

*

**

(http://www.cafcass.gov.uk/news/2013/end_of_year_private_law_case_levels_2012-13.aspx)

To sign a petition requesting the restoration of legal aid for private family law matters, click on the following link:

http://epetitions.direct.gov.uk/petitions/48354

 

Gloria Ikwuakolam

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Legal Costs Blog

A link to the Legal Costs blog 5 April, 2013

Original link at:- http://www.gwslaw.co.uk/2013/04/preparing-for-a-provisional-assessment/

This post examines the new requirements of provisional assessment of costs under the new Jackson reforms on civil costs. The writer is critical of the new regime that will require a Judge to make an assessment of costs without even seeing the receiving party’s case file. He writes:

‘The Senior Courts Costs Office has apparently recognised that this is costs cuckoo land and will be requiring receiving parties to file their full papers in all cases (a requirement the court is permitted to impose under the rules).At first blush this is a step that both paying and receiving parties will welcome.’

Please visit the blog for useful and interesting updates and commentary on all topical costs issues.

 

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Sir Alan Ward on mediation

Sir Alan Ward, recently retired from the Court of Appeal and now Chair of the Civil Mediation Council (CMC) has voiced frustrations with the present rule that permits a party to refuse to mediate in civil cases, even when the judge and other party thinks it appropriate.

In a press release given by the CMC earlier this year, Sir Alan said:-

‘I am utterly convinced mediation has an increasing part to play in providing civil justice. The CMC is at the epicenter of promoting all forms of mediation and maintaining the standards necessary to ensure its success. It is therefore a great honour to succeed Sir Henry Brooke, Lord Slynn and Sir Brian Neill at this crucial time.’

He wants a judge to compel the parties to mediate or face their action or defence being struck out.   And he has used the unusual medium of his judgment in the Court of Appeal to make this request: Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013) 

The very interesting judgment can be found at: http://www.bailii.org/ew/cases/EWCA/Civ/2013/234.html

The case concerned two litigants in person and a dispute relating to a share sale agreement. Sir Alan had the following to say regarding the strain that unrepresented litigants can place on the Courts (para 2 of the Judgment) :-

‘It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.’

At paragraph 3 of the Judgment in Wright, Sir Alan goes on to suggest that it may be time to review the rule formulated in Halsey v Milton Keynes General NMS Trust [2004] EWCA Civ 576, a rule that he contributed to, that ‘to oblige unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstructions on their right to access to the court.’

In quite a colourful paragraph (paragraph 3) Sir Alan summarises the issue of parties refusing to mediate by saying ‘You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable.’

In a unanimous Judgment, Lord Justice Hughes also remarked that efforts to save money of legal representation can end up costing the tax payer more in any event (final paragraph): ‘I also agree that the case is a good example of the way in which efforts to save money on legal representation can often end up costing everyone, and in particular the public, more rather than less.’

In light of the Jackson reforms, mediation is increasingly becoming an integral component of modern civil litigation and so the case of Wright raises the question – ‘who will be the bold judge to Order mediation?, who will be the bold advocate to request such an Order?’.

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