Do neophyte lawyers look for intellectual interest?

There’s an interesting story on Legal Week suggesting law students put intellectual stimulation over money in career choice.  I am a bit sceptical.

I ask my students (if they want to be practising lawyers) something like this informally every year, but I also ask them why they think other students want to be lawyers.  I get similar answers to the Legal Week survey but the students also think other students are much more motivated by the money than they are.  Go figure.  It may suggest a difference between stated and actual preferences or tell us something about how law students project their career choices to their fellow students outside the class room.

I think the interesting thing is then to probe them on their assumptions about where the most intellectually stimulating work is.  These students have often done work placements, but their answers to the question how do you know which work is most stimulating are generally weak and unconvincing.  They often have no real idea what the most stimulating work (to them) is or would be.  They assume that the firms high up the league tables provide the most interesting work but cannot really explain why in a cogent fashion.  And they know they have to pretend (and yep folks they generally are pretending) to find business fascinating and (with a certain amount of bemusement) to be commercially aware.

My (unresearched) conclusion is that in reality financial reward and weak assumptions about what will be interesting reinforce each other and that financial reward is what really drives initial career choices both for itself and as a proxy for ‘being the best’ (whatever that might mean in reality).

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Guest Post: Litigants in person in private family law cases: Summary by the research team

  1. Context (p1-2 of the Report, Litigants in person in private family law cases (Ministry of Justice, 2014): [1])

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 removed most private family cases from the scope of legal aid after April 2013. It was anticipated that the volume and proportion of litigants in person (hereafter LIPs) would increase as a result. The Ministry of Justice commissioned research to explore both the characteristics and support needs of LIPs in private family law cases and their impact on the courts prior to the implementation of legal aid reforms. It was designed to inform policy and practice responses to LIPs following the legal aid changes.

  1. Research design (p3-10 and p136-164 of the Report)

The study was designed to develop understanding of the range of litigants in person in private family law cases, their behavioural drivers and support needs, and their impact on the court system. The research was designed as a primarily qualitative study focusing on understanding the range of experiences and perspectives, rather than a quantitative study seeking to measure variables.

The research included three linked studies:

  • Intensive Cases Study (ICS). The largest element of the research involved detailed analysis of a sample of 151 cases heard in five courts over a three to four week data collection time frame in each court between January and March 2013. The approach was multi-perspectival, involving observation of the hearing in each case, interviews with the parties and professionals associated with the observed case (subject to consent and availability) and scrutiny of the court file.
  • Local Contextual Study (LCS). This involved a series of focus groups in each of the five courts with local stakeholders (judges, lawyers, Cafcass and court staff), interviews and observations with local LIP support organisations and observations of public areas such as court counters and waiting rooms.
  • Secondary Analysis Study (SAS). This involved secondary analysis relating to LIPs of two large national datasets from two current studies led by members of the research team.

 

  1. Main findings

3.1 Characteristics of LIPs (p11-34 of the Report)

The major reason for self-representation was an inability to afford a lawyer, with only around one quarter of LIPs indicating that their appearance in person was wholly or partially a matter of choice. Over half of the LIPs observed had had legal representation at some stage during the current proceeding and/or in previous family law proceedings.

Only a small minority of LIPs were able to represent themselves competently in all aspects of their family law proceedings. Even those with high levels of education or professional experience struggled with aspects of the legal process. The great majority of LIPs were procedurally (and, where relevant, legally) challenged in some way, with some having no real capacity to advocate for their own or their children’s interests. A wide range of personal vulnerabilities were identified with around half of those observed experiencing one or more vulnerabilities which often added to their difficulties in self-representation and in some cases defeated their attempts to do so. A significant number were also trying to handle quite complex cases.

LIPs may create problems for the courts by reason of non-appearances, refusal to engage with proceedings, or, less often, violent and aggressive behaviour. While non-appearances may be quite common, the reasons for apparent resistance to court proceedings, as for violence and aggression, may often be related to litigants’ vulnerabilities. Unmeritorious and serial applications did not appear to be brought any more often by the LIPs in the sample than by represented parties, although having to respond to these applications was another vulnerability faced by some women LIPs.

3.2 Pre-hearing preparations (p35-51 of the Report)

Much of the work in a family case is conducted before and between hearings rather than in the courtroom itself. The list of tasks to be accomplished in the pre-court and between-hearing phases is quite extensive and technically and practically demanding. The list includes determining legal merits and translating a dispute into legal form; consideration of mediation; making an application using the correct form and filing and serving correctly; possible negotiation with the other side in the waiting room and subsequent handling of the case (e.g. handling disclosure, preparing and filing statements).

The successful completion of these tasks was important for the smooth running of the case and for timely and effective hearings. The extent to which LIPs were able to complete those tasks was highly variable. Understandably, many LIPs struggled with a range of technical tasks, including understanding which application form to use, how to complete it and how to file and serve correctly. Some LIPs faced practical problems such as an inability to access or print out online forms. Many LIPs also did not grasp foundational legal principles or concepts such as the importance of disclosure or the expectation of negotiation or settlement.

A significant part of the problem is that the family justice system and the pre-court processes, procedures and tasks are predicated on a full representation model with two trained and experienced lawyers undertaking all these preparatory tasks. At least at the time of the fieldwork, there had been limited adaptation of processes to support LIPs and instead LIPs were largely required to comply with existing processes. There had been comparatively little adaptation of documentation (forms, guidance, letters from court etc) to meet the needs of LIPs. There was limited face-to face contact, advice and support at all stages of the pre-court process and on arrival in the court building before the hearing. The support available from court service staff varied locally but was constrained by concerns about straying into giving legal advice. The reduction in court counter hours and switch to an appointment system in some courts has reduced further the opportunities for face-to-face support.

The challenging and complex nature of the pre-hearing tasks, coupled with limited support and advice, was a source of anxiety and stress for many LIPs. It also had consequences for court service staff workloads as they had to deal with correspondence from LIPs or pick up the errors or omissions in LIP paperwork. Some of the problems also had a significant impact on the conduct of the hearing itself.

3.3 In the courtroom (p52-78 of the Report)

The court system is based on an adversarial, full representation model with two lawyers presenting their client’s cases to an impartial arbiter – the judge – who will make a decision. The role of the lawyers is central.

Hearings where both parties were represented were generally patterned, predictable and efficient. All participants understood their roles without any need for explanation or behaviour management. LIP hearings were far less standardised. There was considerable variation in who picked up the tasks that a lawyer would normally perform in their absence – whether it was a LIP, the judge, the lawyer for the represented party or nobody. There was also variation in how effectively those tasks were done.

The data suggested that semi-represented cases had longer final hearings and required more hearings than fully represented and non-represented cases.[1] Cases with a LIP were more likely to require adjudication or be withdrawn or dismissed. Secondary analysis of a dataset of financial remedy contested hearings also suggested that LIP cases were less likely to settle and less likely to settle early than fully represented cases.

There was variation in how well LIP hearings appear to work or not work in court. Four types appeared relatively fair and efficient/effective: umbrella semi – the represented party’s lawyer works on behalf of both parties; third party (quasi) lawyer – the children’s lawyer acts as broker for both LIPs; fully inquisitorial judge – the judge takes on the role of lawyer(s) and judge holding-their-own LIPs – a competent LIP manages a simple hearing with support from the judge.

Four types of hearing appeared inefficient/ineffective or unfair: “hot potato” hearings – chaotic hearings with disruptive LIPs, adjourned or listed for contested hearings; over-confident LIPs – rambling hearings unable to restrict LIPs to legally relevant matters; out of their depth LIPs – LIPs unable to understand/accomplish tasks resulting in longer or extra hearings and unprotected LIPs – LIPs unable to explore concerns/present case.

 

A combination of factors appears to influence how well courts and LIPs cope. These include matter and hearing type (directions vs. substantive hearing), the approach of the judge and any legal representative, the availability of any facilitative third party and the capacity of the LIP(s). The availability of additional professional (legal) support for the LIP was often key to success. Three of the four types of ‘working’ hearings involved either a supportive lawyer or an activist/inquisitorial judge.

Causes of delay included LIPs’ lack of understanding and experience meaning sometimes critical tasks were missed out, were done inadequately or were completed by the LIP only with considerable coaching and support from others, particularly judges.

Ensuring equality of arms between parties was a real challenge, notably when a LIP was unaware of their legal entitlements and/or unable to do justice to their case. Judges varied considerably in the extent to which they helped LIPs, in itself a source of potential unfairness. Judicial attempts to support LIPs could be seen as unfair to represented parties in semi-representation cases.

Two key ‘legal’ tasks – the preparation of bundles and cross-examination – were beyond the capacity of most LIPs unless they had considerable help.

3.4 The support needs of litigants in person (p79-100 of the Report)

The LIP experience was mixed, sometimes better than expected but often stressful and confusing. LIPs reported fear and anxiety about the process, feeling marginalised and bewilderment and confusion, regardless of educational level.

Factors that made the experience more positive were judges and sometimes opposing solicitors who took time to explain things and being able to draw upon previous experience of being at court. A degree of self-assurance or confidence was helpful, although over-confidence and an over-estimation of one’s understanding of the process could cause difficulties.

The main support needs identified by LIPs were for information about process and procedure, emotional support, practical support and tailored legal advice including broad questions about their entitlements and specific questions about tactics and tasks.

LIPs varied enormously in terms both of willingness and ability to seek support and of the effectiveness with which support was sought. A minority of LIPs were proactive in searching for information without any prompting by the courts. The proactive LIPs could be divided into the capable/organised and those with a scattergun/shot in the dark approach, although even the capable/organised could find it difficult to find the information they needed. Reactive LIPs responded to instructions or suggestions from family justice professionals, especially where those instructions were clear and precise. Passive LIPs relied on others to provide help, did not engage with the court process or had chaotic lifestyles.

Support for LIPs at the time of the study was disparate, variable and limited. The internet has potential for informing LIPs, as well as some very significant drawbacks in relation to relevance, accuracy as well as accessibility for all. Few of the LIPs interviewed reported using the HMCTS or MoJ websites and those who did reported they did not meet their needs. Further, not all LIPs have access to online resources and, even for those who do, websites cannot adequately substitute for the tailored legal advice that many LIPs require.

LIPs reported frustration that organisations like CABx, the court service and Cafcass were not able to offer advice and advised them to seek legal advice that could not be afforded. There is a dearth of free or low-cost legal advice in the community.

Family and friends could be very helpful acting as informal supporters, but the development of paid ‘professional’ McKenzie Friends was a source of real concern to judges, lawyers and Cafcass officers.

As previous studies have found, the courts did little signposting to sources of support. Professional training in how to support LIPs is needed.

The development of support services for LIPs and training for professionals should be informed by, and responsive to, the different needs and help-seeking approaches of LIPs.

  1. Policy Implications and Recommendations (p101-125 of the Report)

4.1 LIPS after 1st April 2013: eligibility for legal aid and the ‘new’ LIPs

Chapter 6 of the Report considers the policy and practice implications of the findings reported above. The chapter begins with consideration of how far the findings are likely to apply after 1 April 2013. The available evidence suggested that the majority of represented parties in the sample who were in receipt of legal aid would no longer be eligible for legal aid after the LASPO reforms. In comparison with the observed pre-LASPO LIPs, the researchers would expect that LIPs post-LASPO would be less likely to be partially represented and more likely to present with vulnerabilities which affect their capacity to represent themselves effectively and create challenges for the courts in terms of safety at court, testing, disclosure and safeguarding children

4.2 Recommendations

The report identified that LIPs have considerable needs for support across several dimensions. It also identified what the researchers consider to be best practices for meeting those needs, based on the team’s review of the literature and the observations and interviews with LIPs and family justice system professionals. It has not been part of the research team’s brief, however, to analyse the cost-benefit of these proposals or to produce a fully worked-up blueprint for change. This section, therefore, summarises the broad recommendations arising from the team’s analysis of the literature and the research data. Further detailed policy and operational consideration will of course be required to determine how these recommendations could be implemented.

Information needs

  • That all relevant family justice communications, including forms, leaflets, practice directions, templates and pro forma, are re-evaluated from the perspective of LIPs and (if necessary) redesigned with their various needs in mind.
  • That a single authoritative ‘official’ family court website is established with all the resources that a LIP needs in one place.
  • That the court’s communication with parties prior to the first hearing is used more effectively to convey important information to LIPs.
  • That judges are encouraged to give LIPs clear verbal instructions and guidance on process and procedure.
  • That the court service provides increased opportunity for face-to-face inquiries with relevant court staff and that guidelines and training for court staff are devised to facilitate information-giving whilst avoiding giving advice.

Emotional/moral support

  • That there is a presumption that a single family member, friend or volunteer may accompany a LIP in court to offer emotional/moral support without the need to submit a formal CV.
  • That consideration is given to the development of a code of conduct, practice guidance or regulatory framework for paid/’professional’ McKenzie Friends.

Practical support and legal knowledge

  • That initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available.
  • That providing support for LIPs in a consistent way in both semi-represented and non-represented cases is understood as a key element of the judicial role; and that judicial officers receive appropriate guidance and training to do so.
  • That measures are introduced to ensure greater availability of and access to exceptional case funding in private family law matters.
  • That a mechanism is introduced to enable judicial recommendation for the provision of publicly funded representation in the interests of justice.
  • That the MoJ consider which other forms of legal and procedural assistance outlined in this Chapter for LIPs engaged in court proceedings can feasibly be supported or implemented.

Other issues

  • Follow up independent research is needed to examine the impact of the legal aid reforms on the types and experiences of LIPs, their impact on the court system and the effectiveness of innovations and services to support LIPs.

 

For further information contact

Professor Liz Trinder

University of Exeter

01392 723375

e.j.trinder@exeter.ac.uk

[1] Liz Trinder, Rosemary Hunter, Emma Hitchings, Joanna Miles, Richard Moorhead, Leanne Smith, Mark Sefton, Victoria Hinchly, Kay Bader and Julia Pearce, Litigants in person in private family law, (Ministry of Justice Analytical Series), November 2014. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf

[1] ‘Semi-represented’ cases are those with one LIP and one lawyer. In ‘non-represented’ cases neither party is legally represented whilst both parties have lawyers in ‘fully represented’ cases.

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Litigants in person, never mind the quality – it’s length that counts

At the same time as the MoJ has published Liz Trinder led research on litigants in person in private family law cases (disclosure, I was a member of the team) the MoJ have published the curiously described, Experimental Statistics: analysis of estimated hearing duration in Private Law cases, England and Wales, Ministry of Justice Ad-hoc statistics bulletin . I think the word experimental is accidental, confusingly hinting at some new methodology or, in research times, an experimental design. Neither are present here. What we have in fact is a standard, limited analysis of data that does not say an awful lot, and what it does say tells more about the questions not asked than those asked. Ad hoc, is on the mark. Still it’s good that it’s published, rather than being slipped out as some quasi-fact in a ministerial speech or appearance before a Select Committee.

What I think the authors of the title of that piece are actually trying to get across is that this is a very limited analysis, limited in large part because they have very little data to go on and that data is of questionable quality on the issue of how long hearings are.

In presenting the findings of the research there has been an attempt to say the research shows that hearing times have not increased as a result of Litigants in Person. I do not know if this is the MoJ press office working its magic or the inaccurate interpretation of hard pressed journalists, but it is wrong. The research essentially says the analysis is inconclusive; some kinds of hearings may have increased. And some decreased. But they are not sure. Partly this is because the data is very basic (there is not data on case types and complexity, which is likely to be extremely important). And partly this is because one half of the analysis is based on hearing estimates not hearing times. And partly it’s because the (flawed) numbers they have do not suggest very much. The report puts it as follows: “There is no strong evidence from the data sources examined that hearing durations have significantly changed over time.”

Interestingly the research is clearer on a few things that have received less emphasis: “The LASPO reforms have had a clear impact on the number of people without legal representation in private law cases.”

That is, the proportion of litigants in person has increased within the proceedings studied. Notably this is from quite a high base. There have been lots of litigants in person for a long time. The professions’ alarm is more recent than the phenomenon itself, but it is a phenomenon which has, on this data, clearly burgeoned.

And, “Average time to first definitive disposal has increased each quarter in private law cases overall – this is being driven by sustained increased in cases where both parties or just the respondent are represented, whilst those without representation show no clear pattern.” I’ll come back to this in a moment.

The final matter which is not mentioned in the report which is obvious from looking at the data in an appendix is that the number of private law family disposals appears to have dropped by about 20%. Where have these cases gone? Is there an underlying dip in family law problems? It seems unlikely that the parties are going to mediation, given the well publicised drop in mediation appointments. What we appear to we know is that the courts are dealing with fewer cases, taking longer but perhaps not listing individual hearings for longer. This looks like a change in complexity of cases or, inefficiency or the extra work required to deal with litigants in person, possibly in combination. We don’t know anything about the nature of those cases still less the actual quality of outcomes on them. Ken Clarke’s prediction that fewer people would litigate looks like it might be coming true. But what people? and what are they doing instead? Vital questions. Only some of these questions are acknowledged in the report and none are answered.

This leads me to my final point. A study which focuses on hearing times is a study which is driven by politics not good policy. No one can possibly believe that the acid test of justice policy is how long family hearings are. It is too narrow to deal with the governments (quite proper) value for money concerns and it is much too narrow to deal with concerns about the proper administration of justice. To deal with hearing times in isolation is to lose the plot dramatically.

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Tiger, Plant, Freshfields and the Short Sellers

Charles Plant, outgoing Chair of the SRA who has led the SRA through one of the more interesting phases in its relatively young life, had some interesting thoughts in a recent valedictory speech (at legal futures).  In particular, flat-earther comments aside, he is reported as having offered this:

[‘Solicitor’ is] a brand, he said, which had been the core reason English law firms have conquered overseas markets: “The universal belief that the hallmark of an English solicitor is his or her integrity, honesty and trust… Solicitors understand that they must respect not just the letter of law and the letter of regulation; they understand that they must respect the spirit of regulation.”

Now this is a sentiment with which I have a great deal of sympathy, although I am less certain than Charles that it is a view commonly shared and adhered to in practice. Or rather that there are a number of rather high profile occasions when this has not occurred and we have yet to see the SRA act.*  Rather than rehearse those and tire a busy readership, I thought I’d point out a new example. It comes from today’s FT and is on the vexed topic of Quindell, but in fact is about the short sellers, not Quindell itself. Read it here if you have access.

The story says that a hedge fund has been using anonymous shell companies (Cayman Islands naturellement) to short sell Quindell shares.  The story quotes a Freshfield partner, Michael Raffan saying:

“The purpose of the short selling disclose rules was to increase transparency and consistency across Europe…   The use of artificial structures to avoid disclosure is against the spirit of the rules.”

The FT is slightly uncertain on whether any rules have been broken but implies not stating: ” It is not against the European rules to use a subsidiary but most other hedge funds use their own names.”  They also quote the FCA saying, “The EU position is that there’s no requirement for the beneficial ownership to be disclosed to regulators.”  It may be the FCA are taking a narrow legalistic view.  Or it may be Mr Raffan is saying that its bad law here rather than suggesting the Hedge fund (or their lawyers) have acted unethically but on the face of it what has happened here, assuming lawyers were involved** (and may have advised against it, yet assisted anyway) it looks like a breach of Mr Plant’s statement on integrity.

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*They may be acting on some – we ordinarily do not know until a decision to prosecute is taken.

** The FT imply that a named London HQed firm did the legal work on this, but we do not know.

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Guest Post: Future Bar Training? A Soft and Uncertain Launch

The Bar Standards Board has today “launched” what it calls an “ambitious new programme to reshape legal education and training” and has asked the Bar for its help.[1] However, it’s not entirely clear what has been launched, nor is any real indication given of what’s coming next. Called ‘Future Bar Training’, we are told to expect, “a number of workshops and open consultations on different work streams” over the next three years, but the press release is somewhat thin on detail. Barristers are told to watch out for what is on the horizon, but not much else. There’s no BSB consultation open,[2] despite the press release stating that ‘Future Bar Training’ will be “underpinned by a fully consultative approach”.  As we tell our students in Contract Law, it is a well-settled principle of law that an agreement to agree is void and unenforceable because it is so uncertain.

What we do know is that ‘Future Bar Training’ is underpinned by four high level aims:

  • “focusing training regulation on what is demonstrably required for professional practice;
  • ensuring that the regulatory structure does not stand in the way of candidates for the Bar from the fullest range of backgrounds;
  • aligning the regulation of education and training with our wider targeted and proportionate approach; and
  • maintaining standards for authorisation to practise as a barrister in a changing market.”

The use of ‘demonstrably required’ in 1. is interesting and, arguably, sets up the BSB for a fall if the evidence base used for its regulatory interventions on education and training are not suitably robust. Certainly, the Legal Education and Training Review[3] (LETR) did not really provide all that much in the way of new empricial data, and other regulators, like the SRA, have commissioned and are using further work to inform their post-LETR policy responses. Is 1. an indication of the same from the BSB? The second aim is laudable – the Bar, like the solicitor’s profession, does not reflect the society it serves and needs to be far more diverse, particularly at the senior levels. Exactly how progression/retention can be better served through regulatory interventions on education and diversity has, however, also been hard for me to fully understand. The third aim seems to suggest a greater move towards outcomes focused regulation. Here, the BSB sets out a work stream that involves, “making our rules covering education and training less prescriptive and ensuring that they are proportionate, transparent, and address the main risks.”

The thing that really irks me, however, about this launch is the narrowness of the call for participation: the BSB “tells the Bar: we want your help”. Simon Thornton-Wood, the BSB’s Director of Education, says that the ‘Future Bar Training’ project is a “real opportunity for the Bar, the public, and the regulator to work together to shape a new era of legal education and training.” Nowhere are legal academics, pedagogic experts, members of other legal professions or the other legal regulators mentioned. I’m sure the LSB will be surprised, saddened even, at being left out of the picture.

This press release, this ‘launch’, feels very rushed. Last autumn,[4] the BSB published a framework for how they were going to respond, in policy terms, to LETR. Little has been publicly said by them since that point. And today’s press release doesn’t really tell us much more.

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Steven Vaughan is a Lecturer at the Law School, University of Birmingham. His full bio can be found here: http://www.birmingham.ac.uk/schools/law/staff/profile.aspx?ReferenceId=66986

[1] https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/bsb-launches-ambitious-new-programme-to-reshape-legal-education-and-training/

[2] https://www.barstandardsboard.org.uk/about-bar-standards-board/consultations/

[3] http://letr.org.uk

[4] https://www.barstandardsboard.org.uk/qualifying-as-a-barrister/letr-next-steps/

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Excalibur sends chill wind… (again)

The latest instalment in the Excalibur case is interesting for many reasons. One is Lord Justice Clarke’s claim that making litigation funders pay costs on an indemnity basis when costs are awarded against the party they are funding on an indemnity basis is not likely to chill access to justice. I do not propose to deal with that at length here here save to say:

  1. This is an extraordinary case by any measure.
  2. The risk of increased cost liability for litigation funders is likely to have some impact on access to justice. The real question is whether such an impact is proportionate.
  3. Should the judgment have a broader impact, it is likely to encourage litigation funders to take a stronger role in assessing the merits of cases and supervising the conduct of claims. Indeed, one of the elements of the case is to question the due diligence of the funders conducted here.
  4. There are merits, but also demerits in encouraging a trend towards greater provision by litigation funders particularly as regards independence of clients and instructed lawyers.

Another interest in the case is something which I have written about before, the conduct of the original claim by Clifford Chance.  A number of interesting matters emerge.

The Fee Agreement

The first is the nature of the representation agreement entered into with their client.  Clarke LJ observes that the agreement “has not been disclosed” but:

it appears that Clifford Chance agreed to provide their services at a 40% discount. In the event of success in the action Clifford Chance would receive an uplift equivalent to 40% of their undiscounted fees, a further 100% of that 40%, and a success fee to be determined by Excalibur in its sole discretion.

I have no problem with firms being able to enter into such an agreement but I do think it raises the question as to what kind of agreement it is and whether it is within the rules regulating CFAs and DBAs. Is it a conditional fee agreement? Is it a hybrid damage based agreement with the damage based element being discretionary? Is it a proper work round of the ban on DBAs until 2013 and the current bar on hybrid DBAs? Are we to take it at face value that there is no damage based element to this arrangement and that the client has a genuine discretion to offer the law firm a contractual gift?  Without more evidence, I think we have to assume the latter, but it seems to me an odd arrangement for arms length parties to enter into.

What the funders were told about the merits of the case and how those merits were assessed

The case involved several litigation funders some of whom, it appears from the judgment, relied solely or mainly on the advice of  Mr Panayides the Clifford Chance partner with conduct of the claim.  It is worth emphasizing that Clarke LJ did not have the benefit of evidence from Clifford Chance or all the paperwork passing between Clifford Chance and the funders.  Also though, in relation to one crucial witness for the funders he says, “I have no reason to doubt that what he there says is substantially accurate.”  What do we learn from this?

It seems to be the case that part of the reassurance offered to funders was by way of a Clifford chance opinion. This may imply that (as one would hope) the firm reviewed the merits of the claim and stood behind a decision that the Excalibur case had, “a strong likelihood of success.”  Of course it is well known that Clarke LJ sees this view as “deeply flawed” but he does not go as far as saying Clifford Chance could not hold that view. He has previously said, however:

Excalibur’s case on [a particular]… topic …had involved it (a) contradicting itself, and (b) developing theories which (i) were not open to it in the light of the way the case has developed …and (ii) were unsupported by the evidence.

…the deceit claim    …had all the hallmarks of a lawyer’s artefact. It did not make sense.

He also accepts for the purpose of this judgment that:

Mr Panayides said that Clifford Chance were so confident that they were on a partial Conditional Fee Agreement, something they had virtually never done; that it was the best claim he had ever seen; and that he had never lost a case in his entire legal career. It was very unlikely that the case would go all the way to trial but if it did it would take place within the year.

And that one of the funders:

…asked if it would be possible to get a QC’s opinion. Mr Panayides said that that would not be possible before the date by which the funding was needed. Mr Lemos’ statement does not explain why there was any deadline, let alone one which should prevent him from obtaining the second opinion which he had sought.

…During the trial Mr Panayides or his assistant would send transcripts and a summary report highlighting the key issues and how generally they thought that the trial was progressing. Mr Panayides’ reports were generally very positive. At no point in the trial did Mr Panayides change his views on the prospects of success.

The same witness claimed not to have been told until January 2013 that there was “a remote possibility” that the Defendants could bring a claim against the funders for costs. The crux of the matter is summarized by the judge in this way:

Mr Lemos [who himself trained but  did not practice as a barrister] says (i) that he and his family were told throughout the proceedings that the claim had a very strong prospect of success; (ii) that he believes that they were misled and deceived by the Wempens just as much as the Defendants were; (iii) that the legal opinion that he was given was flawed from the start and everything flowed from there. At no point were they told to seek legal advice; and they did not think of doing so because they felt that to all intents and purposes Clifford Chance were their legal advisers. They were not personally responsible for the matters which caused me to order indemnity costs.

I do not regard Mr Lemos as having behaved in a morally reprehensible manner or with any impropriety. He was approached by a partner, well known to his family and in a firm of top rank solicitors, who gave him extremely confident advice which was repeated as the case progressed, despite the fissures which were developing in it. He does not appear to have become consciously aware of the legal sink hole which underlay Excalibur’s case and which opened up during its course.

Clarke LJ does not impute to Clifford Chance a lack of belief in their own advice, (indeed he says, “I am sure that Clifford Chance remained confident to the end”) but he does note a judgment by Gloster J (as she then was) referred in June 2011 pointed to obvious problems with the case including, “an obvious laches defence to any claim for specific performance” (based on delay), “the lack of evidence as to Excalibur’s financial or technical capabilities” and , “that Excalibur’s grounds for saying that any Gulf Defendant was party to the Collaboration Agreement were not at that stage “legally or evidentially convincing.”  He also observes, that Mr Panayardes continuing confidence in the case at the later stages, “is surprisingly light of the cross examination of the Wempens”.

Other funders are reported as having received similarly:

‘very upbeat and optimistic’ assessments of prospects of success, which he rated as very high (“the best case he had ever seen in his career”) with prospects in excess of 70%.

These other funders did however do some due diligence on the claim.  Advice was sought by one from Orrick, Herrington and Sutcliffe although this was based on limited documents which interestingly did not include the Gloster J judgment.  That opinion was “heavily caveated” and made plain their heavy reliance on Clifford Chance, in particular them having skin in the game through reducing their fees.  That letter of advice said Excalibur were more likely than not to win.  Allen & Overy also gave an opinion to one of the funders, “to the effect that Excalibur had a “high likelihood” of recovery.” That opinion Clarke LJ describes as “curious” (para. 102) but it at least provide some comfort to Clifford Chance that their judgments may not have been as poor as initially implied.

We are thus left in a very tantalising position.  What was the cause of Clifford Chance’s miscalculation of the prospects of success in this case?  Did they, or particularly the partner in charge, behave appropriately in his discussions with funders?  Was his description of the claim part of the normal biasing towards one’s client interests which occurs subconsciously, or was it part of the lawyer’s advocacy of their client’s position?  To what extent is such advocacy legitimate when dealing with apparently sophisticated third parties?  Or is there a case that unfair advantage was taken?  What is one to make of the family connection between funder and partner?  Ought, the prospects of success have been appreciated (particularly towards the end of the case when further support was sought from funders).  Did the somewhat opaque fee agreement, high stakes and aggressive litigation strategy compromise the quality and independence of the lawyers judgment in this case? Clarke LJ does not say, but seems to leave all options open.

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CEPEJ Data: Common Law Countries, Average but not with Legal Aid?

I have had a chance to have a bit of a closer look at the CEPEJ report.  It compares public spending on various parts of the justice system in a great deal of detail.  Inevitably in seeking to make comparisons, however, it loses some of the detail and suggests things are comparable which may not be.  However, given the interest in the area, I have quickly pulled together some of the key comparative data on England and Wales relative to the other countries.  The full report is eye wateringly long, but I recommend that anyone interested takes a closer look before hypothesising too strongly.

The broad kinds of spending covered is shown in this diagram from the report.

 CEPEJ

The position of England and Wales in the ranking of European countries (which it should be emphasised contains a very wide grouping of countries from the wealthy to the poor, and with widely varying legal systems) appears to be (on my calculations) as follows.  In broad terms, England and Wales tends to rank about average or significantly lower in comparative spend terms on most indicators other than legal aid, where common law systems generally, and sometimes also relatively rich countries, tend to spend significantly more.  Here are the headlines.  All figures are for 2012, so the LASPO cuts would yet impact on these numbers (although other cuts were having an impact as we will see).  Out of over 40 countries, England and Wales was:

  • 27th highest in the proportion of the annual public expenditures allocated to the whole justice system at 1.8%,below an average of 2.2%
  • 22nd highest in the proportion of the whole justice system budget allocated to the judicial system (courts, public prosecution services and legal aid) at 51.6%, just above average (49.2%)
  • 11th highest in annual public budget allocated to all courts (excluding legal aid and public prosecution) per inhabitant at 42.2Eur, just above an average of 34.8Eur
  • 27th highest in annual public budget allocated to all courts (excluding legal aid and public prosecution) as a proportion of GDP per capita at 15%:  below the average of 0.21%.  The report notes: “It must be stressed that States that benefit from large scale assistance to strengthen the rule of law, in particular from the European Union or other international organisations, automatically allocate relatively high proportions of their budget to their court system. This is the case in particular for Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia”, Croatia, Poland, Hungary or Bulgaria. Consequently, Western European states or entities, which have higher national levels of wealth such as Sweden, the Netherlands, Norway, Finland, Denmark or UK-England and Wales, seem to spend smaller amount (GDP per capita) to finance courts. This distorting effect must be taken into consideration when making possible comparisons, in order not to draw the erroneous conclusion that a wealthy state or entity would not allocate a significant budget to the functioning of its courts.”
  • 10th highest in annual public budget per inhabitant allocated to the public prosecution service in 2012 at 8Eur, just above average at 11.4Eur
  • 30th in annual public budget allocated to the public prosecution service per inhabitant as part (in %) of the GDP per capita at 042% – well below average (here there had been a significant reduction in E&W between 2010 and 2012 which was masked somewhat by exchange rates).

On legal aid the report notes this:

 A little bit less than 9 € per inhabitant is spent on average by the public authorities to promote access to justice through the legal aid system. However, it seems more relevant to consider the median value in Europe: 2,25 € per inhabitant. The Northern European states commit the largest budgets to the legal aid systems. As it was the case in previous evaluation years, Northern European states have a strong tradition of generous legal aid systems: more than 50€ per inhabitant are spent in the legal aid system in Norway and UK-Northern Ireland and between 20 € and 50 € in UK-England and Wales, UK-Scotland, Netherlands and Sweden. A relatively high amount of the budget (more than 10 € per inhabitant) can also be noted in Ireland, Denmark, Switzerland, Finland and Iceland.

The figures indicate England and Wales were:

  • 3rd in annual public budget allocated to legal aid in 2012, in €per inhabitant at 59Eur.63 well above an average of 8Eur (only Norway and UK-NI spend more)
  • 2nd in annual public budget allocated to legal aid per inhabitant as part (in %) of the GDP per capita, in 2012 at 14% only NI spent more per capita. The average was 0.02%
  • 8% cuts had bitten by 2012 (this figure is softened by exchange rates so the position is worse), one of only 8 states reducing their spend during that period.
  • Norway, and the three UK jurisdictions spend the largest proportion of their justice budget on legal aid (40%+). Iceland, Sweden, Ireland and the Netherlands spend more than 20% most of the others spend less than 10%

In further analysis England and Wales were:

  •  16th in total annual budget allocated to all courts and public prosecution (without legal aid) per inhabitant in 2012 at 9Eur, just above average (53.2Eur)
  • 35th in annual public budget allocated to all courts and public prosecution services (without legal aid) per inhabitant as part (in %) of the GDP per capita, in 2012 at 18% significantly below average (0.28%)
  • 7th in total annual budget allocated to all courts and legal aid (without public prosecution) per inhabitant in 2012 at 83.7Eur significantly above the average 43.3Eur
  • 14th in annual public budget allocated to all courts and legal aid (excluding prosecution services) per inhabitant as part (in %) of the GDP per capita at 28% (just above an average of 0.27%)
  • 9th on total annual budget allocated to the judicial system (courts, legal aid and public prosecution) per inhabitant in 2012 at 5Eur well above an average of 60.6Eur
  • 16th on annual public budget allocated to the judicial system (courts, legal aid and prosecution services) per inhabitant as part (in %) of the GDP per capita, in 2012  at 32% just below an average of 0.33%

One final nugget, interesting in the light of Mitchell and the increases litigants in person in particular.  On Judicial trainingThe report states that:

Less than 1% of court budgets is spent on judicial training in Europe in 2012, which has not improved over the past periods studied by the CEPEJ. Judicial training can be considered as a spending priority (more than 2% of the court budgets) in Armenia, Georgia and Azerbaijan. This budgetary effort is very limited (less than 0.1% of the court budget) in Bulgaria, Italy, UK-England and Wales.

 

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