Andrew J Crossley, Sole principal, ACS Law Solicitors, London Last week Deborah Prince of Which? offered some ‘friendly advice’ (see  Gazette, 1 April, 11). This follows repeated and public criticism from Which? of my firm for legitimately acting for my clients. Prince appears to have overlooked the basics of the Digital Economy Bill. The bill, and the extensive consultation preceding it, expressly excluded any reference to the pre-existing remedies available to copyright owners, such as injunctive relief and civil action seeking damages for infringement that are the processes my firm invokes to identify and pursue acts of copyright infringement. My clients are pleased with the service I provide. I have conducted file sharing-related work for 11 months; to date I have recovered close to £1m for my clients. I welcome the ability of a consumer organisation such as Which? to lodge a formal complaint with the Solicitors Regulation Authority. However, I object in the strongest possible terms to the repeated attempts by Which? to whip up hysteria and public outcry based upon inaccurate accusations about what I do and to launch technical criticisms unsupported by any evidence. In my view, doing so is prejudicial to a fair investigation by the SRA. I have faith that the SRA will remain implacable and objective throughout its deliberations. The facts, processes, procedures and compliance should be the focus of their investigation, not the remonstrations of less than 3% of those to whom my firm has written, nor Which?, which should leave the SRA to get on with its work unmolested.
Criminal law solicitors this week voiced concerns over the Legal Services Commission’s track record on IT projects, as it began a phased national rollout of its new electronic criminal billing and claim forms. The new eForms are part of the LSC’s delivery transformation programme, designed to reduce costs and speed up and simplify its processes. Rodney Warren, director of the Criminal Law Solicitors Association, said: ‘Every time I hear the word e-anything from the LSC it makes me feel like someone is pinching me and it causes me pain. ‘The LSC has been piloting the eForms, but its track record is so poor when it comes to IT initiatives that I struggle to have confidence in the successful roll out,’ he added. Greg Powell, an executive officer of the London Criminal Courts Solicitors Association, said: ‘If it works it will be a step forward, but all history tells us to be very cautious about believing that anything the LSC does will be either simple or work.’Powell added that he hoped the scheme would not suffer the same problems as the recent criminal contract tender process, which had been ‘a nightmare’. Phil Lambert, executive director for business support at the LSC, said: ‘I am extremely mindful that previous LSC technology-led implementations have caused difficulties to our providers, and eForms cannot be allowed to give us all a similar headache once again.’
Nick Kehoe is a former television and newspaper journalist. He is now managing director at law marketing firm Media Coverage. For more In Business blogs go to http://lawgazette.co.uk/blogs/inbusiness As with so many things in life, timing is vital when it comes to writing law articles as a way of marketing your firm. Good timing can improve your chances of getting your article published in the media and it can help maintain a steady flow of material for your blog or website news section.As lawyers you have certain advantages over many professions when it comes to finding ideas for articles because you work everyday with a subject that governs our lives. Your potential readers are already pre-disposed to be interested in your article because the law affects them, their families and their businesses. Not every profession can say that. But it gets even better. Not only do you have this excellent source of material, you also have another advantage because the law is constantly changing due to new legislation, regulations and court rulings and so on. These changes mean you always have something new to write about. That brings us back to the issue of timing and how it can help us produce a steady stream of articles on the same subject. Nearly all legal changes have a long gestation period that can last several years. For example, a new piece of legislation will go through its various stages of being announced in the Queen’s speech to its readings and committee stages and so on. Even when it receives the royal assent there will still probably be a year or so before it comes into effect. This gives you several chances to write your articles. For example, when you first hear of a new piece of legislation that you feel may interest your readers, you could write an article explaining what the changes will mean and how it will affect people’s lives and businesses. At this stage you probably won’t have many details about the precise nature of the new legislation but that doesn’t matter. In fact, it’s a good thing because each stage in the development of the new law gives you a chance to write another article as more information emerges. You don’t have to take every opportunity, of course, or you may become repetitive. But you could probably write at least three or four pieces that would be worthwhile. These might be a piece when the new legislation is first mooted, another when it gets its first reading when most of the details emerge, and then another when it gets the royal assent. If you wish, you could then do a recap when the law comes into effect a year or so later and there’s also likely to be another opportunity about six months after that when the law has had time to have an effect. At this stage you might write about whether it has actually brought the promised benefits or whether it has in fact created unforeseen problems. To see how this might work in practice let’s consider the Equality Act. In my last blog blog I mentioned that solicitors could produce several articles by breaking the act down into its various themes rather than trying to write about everything in one go. Good timing will provide you with even more opportunities. Many law firms have already produced several articles on the act during its progress under the previous government following the steps outlined above. Now they will be preparing to write another article to coincide with the law coming into effect in October. The start date makes the subject topical again. There is also the angle that the new government is likely to make a few alterations. For example, it hasn’t yet decided exactly what approach it will take to all the equal pay measures covered in the act. Ministers say they will give more details over the coming months, which will provide more opportunities to produce another blog or news article. Once the act comes into force it will naturally have an effect of some sort. This means there will be several more chances over the coming year to return to the subject to examine how the changes are working in practice. Are they causing problems for businesses? Is there something companies can do to avoid potential pitfalls? This may seem time-consuming but in fact it’s a very effective way of producing several worthwhile articles out of the same subject. Writing an article from scratch requires a lot of time and research so don’t limit yourself to one showing. Return to it again and again when a new landmark appears. Your follow-up articles will be much easier and quicker to write because you have already done the main research. It means you will be able to keep your news section fresh and up-to-date and provide a good service for your clients with the minimum effort.
In his letter of 8 July, Hugh Barrett of the Legal Services Commission referred to ‘procurement area’, ‘client access’, ‘proper advice provision’ and ‘client demand’. Regrettably, this shows a lack of awareness of the type of work in which mental health lawyers are involved. For over 20 years I have represented hundreds of clients, as have many of my colleagues. On admission to hospital, these clients are vulnerable and frightened. Sometimes I am their first port of call. This is not just a matter of knowing the law, it is also about time spent listening and building up a relationship and rapport, and becoming privy to their confidences. It is a privileged position to be a party to their innermost confidences, and such a relationship cannot be abandoned lightly. What am I to say to a client I have represented for the best part of 20 years, when I tell them my legal aid quota has run out and they will now have to see someone else? They will not understand the market place which is now the legal aid system. Luke Grant, solicitor, Worcestershire
Solicitors have warned that local authorities may be deterred from placing vulnerable children into care, following the government’s decision not to scrap the controversial court fees paid by local authorities in care and supervision cases. In a written ministerial statement yesterday, justice minister Jonathan Djanogly (pictured) said the fees of up to almost £5,000, which were due to be abolished from April 2011, would now be retained pending a further review once the family justice review panel has reported next autumn. In May 2008, the court fees paid by local authorities for care and supervision proceedings rose from £150 to up to £4,825, to more accurately reflect the true cost to the court. The move prompted an outcry from family solicitors. In March 2010, then justice secretary Jack Straw agreed that the fees would be abolished from April 2011, following an independent review of their impact by Francis Plowden. Plowden’s review, which was undertaken in response to a recommendation in Lord Laming’s review of child protection after the death of Baby P, found that the introduction of the fees could influence whether local authorities initiated proceedings. Djanogly said: ‘I have carefully considered the decision of the former secretary of state, and believe that there is no justification that these fees should be abolished and as such they will remain.’ He said: ‘Protecting vulnerable children is paramount, and I do not believe that continuing to charge these court fees will place vulnerable children at risk.’ Djanogly said that local authorities have a statutory duty to investigate instances when they suspect a child is suffering, or is likely to suffer, significant harm, and it would be unlawful for them to take financial considerations into account when making such decisions. He said there was little, if any, empirical evidence to suggest that the fees deterred local authorities from commencing proceedings, noting that the number of applications had risen since 2008. ‘Francis Plowden’s review found that resource issues could play a part in determining whether proceedings were initiated, however, he only believed this occurred “at the margins”. He confirmed that this conclusion was based on anecdotal evidence alone and also stated that it was unlikely that children have been knowingly left at unavoidable risk by local authorities,’ said Djanogly. Law Society chief executive Des Hudson said: ‘No one wants to see another Baby Peter tragedy, but by maintaining these high fees, neglected and at risk children could be denied the protection of the courts because local authorities cannot afford it. The government must not allow its eagerness to cut the budget to put children in danger. The Society will do all it can to encourage the government not to maintain these fees at their current levels.’ He added: ‘This move goes against the government’s promises not to extend their austerity measures to society’s most vulnerable… This is even more serious now than when it was first introduced in 2008. It is local authorities who have to pick up the bill in these cases and they, like so many public sector bodies, are being squeezed by the chancellor.’ Alan Bean, co-chair of the Association of Lawyers for Children, said: ‘This is yet another example of government moving in the direction of trusting hard-pressed social services to do the right thing.’ ‘Manifestly, it will result in Section 20 accommodation orders being allowed to carry on for months, and detriment being suffered to children drifting, when care proceedings ought to be issued or children returned to their families,’ said Bean. Denise Lester, a partner at London firm Moss Beachley Mullem & Coleman, said she was concerned that the retention of the court fees would have an impact on the decisions made by local authorities to issue proceedings. She said: ‘Safety, welfare and the protection of children is, and must remain, paramount above cost considerations.’
Shipping – Actual total loss – Cargo – Piracy The appellant insured (M) appealed against a decision ( EWHC 280 (Comm),  2 All ER 593) that the capture of a vessel by pirates did not create an immediate total loss of the cargo. M’s cargo of biodiesel was being carried from Malaysia to Rotterdam on a vessel which was captured by Somali pirates in the Gulf of Aden. The shipowner commenced negotiations for the payment of a ransom for the release of the vessel, her crew and cargoes. M was not party to those negotiations. The value of the vessel and cargo amounted to $80m. After about four weeks M served a notice of abandonment on the respondent insurer (D). The notice was rejected, but proceedings on the policy were by agreement deemed to have been commenced on that day. The vessel, her crew and cargoes were released some 11 days later on payment of a ransom of $2m by the shipowner. The voyage to Rotterdam was completed. M’s case was that capture by pirates created an immediate actual total loss, whatever the prospects of recovery might be, and, in any event, the law should not take account of the payment of a ransom as a reason for calculating the possibilities of recovery; there was no duty on an insured under section 78(4) of the Marine Insurance Act 1906 to pay a ransom; therefore, since the cargo had not been recovered by the time proceedings were deemed to have been commenced, M was entitled to succeed on its claim against D. D submitted that for an actual total loss M had to show that it was ‘irretrievably deprived’ of the cargo under section 57(1) of the 1906 act and on the authorities that connoted a physical or legal impossibility of recovery; the cargoes were not irretrievably lost when there was a good chance of release on payment of a ransom; payment of a ransom was neither illegal nor against public policy and could therefore be taken into account when applying the test of irretrievable deprivation. Held: (1) Piratical seizure in the circumstances of the instant case, where there was not only a chance, but a strong likelihood, that payment of a ransom of a comparatively small sum, relative to the value of the vessel and her cargo, would secure recovery of both, was not an actual total loss. It was not an irretrievable deprivation of property. It was a typical ‘wait and see’ situation. The facts would not even have supported a claim for a constructive total loss, for the test of that was no longer uncertainty of recovery, but unlikelihood of recovery. There was no rule of law that capture or seizure was an actual total loss. Piratical seizure, in the absence of a policy of ransom, could amount to an actual total loss, where the pirates escaped with their prize for their own use and there was no prospect whatever of finding or recovering vessel or cargo: but where a chance of recapture remained even such a seizure would not give rise to an immediate actual total loss, and, in any event, that was very far from the instant case, Dean v Hornby 118 ER 1108 QB and Andersen v Marten  AC 334 HL explained and Kuwait Airways Corp v Kuwait Insurance Co SAK (No1)  1 Lloyd’s Rep 664 QBD (Comm) doubted (see paragraph 56 of judgment). (2) Theft was a peril within the policy and M submitted that the taking of the vessel and cargo, even with an intention of returning them on payment of a ransom, constituted theft under English law. However, the incidence of a peril was one thing, but for that peril to cause an actual total loss was another: for that to occur, the test of irretrievable deprivation had to be met. In the instant case, M had not been irretrievably deprived of its cargo (paragraphs 57-60). (3) There was no legislation against the payment of ransoms. If the payment of a ransom could be recovered as sue and labour expenses, it would seem to follow that it could not be against public policy, Royal Boskalis Westminster NV v Mountain  QB 674 CA (Civ Div) considered. The fact that there might be no duty to make a ransom payment did not turn a potential total loss which might be averted by the payment of ransom into an actual total loss. The payment of the ransom in this case was made, and negotiated, by the owner of the vessel, and not by the insured. The fact that the shipowner paid a ransom inevitably defeated the insured’s claim (paragraphs 63, 64, 72, 77). Appeal dismissed. Masefield AG v Amlin Corporate Member Ltd: CA (Civ Div): 26 January 2011 Sydney Kentridge QC, Andrew Henshaw (instructed by Arbis) for the appellant; Peter MacDonald Eggers, Sarah Cowey (instructed by Waltons & Morse) for the respondent.
Sedgemoor magistrates have dropped legal action seeking to prevent the closure of their court after having ‘lost faith in the system’. The decision leaves the Ministry of Justice facing three actions over its programme of court closures. Mike Dodden, former chairman of the Sedgemoor bench and director of SLJ, the company set up to fight the closure of Sedgemoor Magistrates’ Court, told the Gazette he would not be pursuing the application for a judicial review. SLJ had issued proceedings, but decided not to continue after considering the response to its application from the Treasury Solicitor on behalf of the MoJ. Dodden said: ‘We got the feeling that although we had a strong case, the MoJ would find another way to close the court even if we succeeded. ‘We didn’t feel they had taken note of anything we had said and we lost faith in the system.’ The High Court in Cardiff will hear arguments next month over the proposed closure of magistrates’ courts in Barry and Cardigan. Two local solicitors, Stephen Welch, partner at Welch & Co and Alan Lewis, consultant at Taylor Lewis, are bringing the proceedings in relation to the Cardigan court. They were initially refused permission for a review, but now have an oral hearing listed and have launched a fighting fund to cover their costs. The Law Society has offered £3,000 on the condition that the sum is matched by local donations. The substantive hearing of the case in relation to Barry, instigated by Vale of Glamorgan Council, is listed on the same dates. At the time of going to press, the High Court was also scheduled to hear proceedings challenging the closure of the court in Sittingbourne. An MoJ spokeswoman said it is defending the claims, but is committed to supporting local justice, and enabling justice to be done and be seen to be done. She said: ‘Closures will ultimately help to modernise and improve the use of courts in England and Wales. ‘Keeping under-utilised courts open is simply not a good use of taxpayers’ money and resources must be targeted to best effect to provide value for money.’
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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 community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN