Wednesday, February 28, 2007

Lawyers Beware - Changes to Civil Procedure Rules

From 6 April 2007, changes to Part 36 and Part 14 will come into effect.

At a glance the most significant change is that Defendants need no longer make payments into court in order to gain costs protection for their offers to settle (proving certain conditoins are satisfied).

Furthermore Part 14 has been amended, apparently to tidy up the mess left behind by the Court of Appeal in Sowerby v Charlton.

Monday, February 26, 2007

Drift Magazine - book review

This appeared in issue 2 of Drift Magazine in February 2007.
Book review of 'Riding the Magic Carpet’ by Tom Anderson (Summersdale Publishing)
When Tom Curren first rode the right hand point break at Jeffrey’s Bay in South Africa, the world watched in awe. For the author it symbolised everything that was going on at the time. The ending of tyranny, the ride to freedom, the opening up of a new world. From that moment on, the image of that wave entered Tom Anderson’s mind and transformed itself in his imagination. Not only did it represent events half way across the world. It started to symbolise the ending of the petty tyrannies which he faced each day at his local school in South Wales.

As the years went by, the yearning to experience the wave for real took on greater significance until it became something of an obession. Every surf trip was undertaken with a justification at least in the back of his mind that it would take him one step closer to being able to paddle out at J-Bay. To some extent, it became a symbol of the author’s ambition, an end in itself. Ahab and his whale.

His travels took him from the beach breaks of France to the Orkneys and Thurso East and eventually further afield to Sri Lanka and Uluwatu. As is the case with all epic adventures, the hero accidentally stumbled upon self-enlightenment triggered most poigntantly through suffering. First it comes at the culmination of a number of frustrating trips to Mundaka where the wave just refuses to awaken. Then when finally it rises from its slumber the author’s board breaks. Worse still he later breaks his leg and has to endure a surf trip taking in Pavones in Costa Rica without even being able to paddle out. Perhaps it was a fear of being unable to surf. Or perhaps it was a deeper fear that if he couldn’t surf, he couldn’t pursue his ambition which had all been tied into J-Bay over the years.

As he went through the frustration of having to watch his girlfriend enjoy the waves, he slowly started to let go of his own ambition and appreciate the value of teaching, passing on. It is described almost as an epiphany and with it the cloud of ambition appeared slowly to lift. As it did, he reflected on his father’s generation and their own lack of selfishness: “These patient characters had sat there for hours on end, without needing an injury to keep them from wanting to surf themselves, filming kids for no other reason than handing the gift of wave knowledge on through the generations.”

Perhaps it was because he had actually let go of his ambition for its own sake, of his need for J-Bay, that he was eventually rewarded with the waves of which he had dreamed. Perhaps he would have made it anyway. Either way, it is this journey of enlightenment which takes the book from a very readable and entertaining travel book to something deeper. Yet if it is allegorical, it is with a touch light enough to carry it. No need for horror or a Mr Kurz in the jungle here. It’s from the simplicity of the everyday coupled with classic surf adventure that it derives its power. Definitely up there with the best in surf travel literature.

Why Lawyers Should Surf

Why Lawyers Should Surf (co-authored with Dr Michelle Tempest) is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here.

As to the title why lawyers should surf in particular, it is hoped that this metaphor will help to illustrate some of the points made in a way which is outside of the lawyer’s day to day experience. Its use has obviously become particularly prevalent in the modern world as a result of its association with computers and internet surfing. However, the connection to surfing, waves and the deep ocean beyond goes far beyond such modern inventions.

The human connection with the ocean is primeval and touches the very depths of our souls. Evolutionists might suggest that it has something to do with the fact that all species originated in the sea. Biblical references might be made to the first paragraph of the Bible which says “the Spirit of God moved upon the face of the waters”, to Noah and the great flood, Moses and the parting of the Red Sea, Jonah and the whale and even Jesus himself walking on water. Psychologists on the other hand might suggest that it is due to our time in the womb or the fact perhaps that like the surface of the earth itself we are made mostly of water. As Goethe put it, “All is born of water; all is sustained by water.” In The Book of Waves, Drew Kampion suggested that we are all drawn to the meeting of the land and the ocean because of the release of energy which happens there: “…where ocean wave meets solid ground and gives up its accumulated life force in a powerful expression of consummation”.

It is not to suggest that any of these reasons are necessarily correct, but simply that there is an almost inexplicable connection. Something which you can’t quite put your finger on, yet is utterly fundamental. This connection may underlie the feeling a surfer gets when riding a wave. However, as with the connection with the ocean, the feeling in many ways diminished when one attempts to put it into words. As far back as 1777, canoe surfing was described in an account of the voyages of Captain James Cook in the following way, “I could not help concluding that this man felt the most supreme pleasure while he was driven on so fast and so smoothly by the sea”.

Surfing is far more than pleasure. It is a connection with nature, the world, with God. Some might say it is love itself. It is a sense of timelessness, of other worldliness yet at the same time as connected to this world as it is possible to be. Daniel Duane describes it in Caught Inside as “a small occurrence outside the linear march of time”. In The Four Quartets, T.S.Eliot describes “the still point of the turning world… [w]here past and future are gathered” and it is perhaps only in poetry and the evocation of life’s mysteries that one can approach the essence of surfing with any accuracy. He goes on, “Except for the point, the still point, There would be no dance, and there is only the dance…surrounded / By a grace of sense…In the completion of its partial ecstasy.”

However inexplicable it might be, the harnessing of the ocean and the mighty waves it throws shore wards provides a very powerful metaphor for the harnessing of life and everything that it throws at each one of us. On a more everyday level, it is also a sport which is away from worldly cares and to that extent contrasts with the sometimes stuffy image of the law. It is hoped that this may help to inspire the reader into seeing particular issues from a new perspective. Of course, it might also have the side effect of inspiring the occasional reader into paddling out into the waves themselves.

Saturday, February 24, 2007

Weekly review

BEST OF THE BLOGS

BabyBarista: pupil & clerk affair; secrets of “devilling”
This extremely funny fictional account of life as a pupil barrister has made ‘Best of the Blogs’ for the second week running and is flying around the legal world. This week: BusyBody “goes home” with a clerk and TidySum takes devilling to another level. BabyBarista.

Cheeky Chappie
Magistrate writes about a case in which the police failed to prove a car was stolen due to the lack of a chassis number and the “Cheeky Chappie” walked off with it. Magistrate’s Blog.

Charon QC on Barrister A
More from the life and times of the political lawyer, Barrister ‘A’. Charon QC.

Law students' blog
The thoughts and ramblings of four law students trying to make it to qualification. UK Law Students.

LEGAL NEWS

Microsoft fined $1.5bn for MP3 breach
A jury decided that Microsoft infringed two Alcatel patents in using the digital music format on Windows Media Player. Times.

Woman sentenced for bringing fraudulent claim
A woman was given a four-month suspended sentence and a two-year supervision order for making a false accident claim against transport company Arriva. BBC.

Landmark legal case over MRSA in hospital wards
Lawyers are taking legal action against the NHS in Scotland, claiming that hospitals breached health and safety regulations in allowing the MRSA superbug to develop in wards. The Herald.

Home Office faces payout for leaving translators idle
Home Offices found guilty of race and sex discrimination and to have unfairly dismissed two workers for leaving them idle for 15 years. This is London.

£6.6million for negligent birth
Teenager awarded £6.6m in damages after negligence during his birth left him with brain damage. Metro.

Google locked in legal battle over Gmail in Europe
Google has lost an initial attempt to gain sole control over the Gmail trademark in Switzerland and faces potential disputes in other countries. ZDNet News.

AND FINALLY…

Art of listening
Psychiatrist on the art of listening and the dangers of not doing so. See The Psychiatrist Blog.

YouTube biker
A man has been arrested after police found a YouTube video which he had posted of him allegedly speeding. Guardian.

Boston Legal clip
James Spader on the secret of trial law. You Tube.

Stumpy, the four-legged duckling
A duck farm has been looking after a four-legged duckling, christened Stumpy by his owner. Daily Telegraph.

Friday, February 23, 2007

Subtle Brain Injury

Readers may also be interested in the recent High Court decision in van Wees v (1) Karkour (2) Walsh. This must be one of the first cases in which a senior Judge has grappled with the medical issues involved in subtle brain damage cases. The judgement contains a particularly interesting discussion of the nature and diagnosis of post-traumatic amnesia. More about this case next week!

Tainted by Fraud

The difficulty with partially fraudulent claims, which we have been trying to articulate on this blog, has it turns out already been elegantly expressed by Bingham LJ (as he then was) in Saunders v Edwards 1987 1 WLR 1116:

"On the one hand it is unacceptable that any Court of Law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the Court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the [claimant], no matter how serious his loss or how disproportionate his loss to the unlawfulness of his conduct"


This gives rise to any number of problems in practice. Few would have qualms about cross examining a dishonest Claimant at length, until (hopefully) their web of lies unwinds. Where a Claimant lies in a document verified by a statement of truth, I would go further and ask a court to send the papers to the Attorney General to consider prosecution (as in CPR 32.14). Equally however there must be many honest Claimants, who are put through invasive and aggressive questioning unnecessarily.


Fundamentally is it good enough to rely on common sense and instinct to decide when a fraud is so pervasive that the entire claim should fail, or should there be clearer rules?

Thursday, February 22, 2007

Judicial tears

Just watched the the video of the Florida Judge Larry Seidlin breaking down in tears as he gave judgment in the custody dispute over the late Anna-Nicole Smith's daughter. What next, you might ask? Perhaps the Lord Chief Justice breaking down in tears when he is forced to uphold one of the government's policies? Definitely Tony Blair when he is forced to hand over the reins to his next door neighbour. But maybe we might even start seeing County Court judges following suit in possession actions or personal injury cases.

Wednesday, February 21, 2007

Tainted by fraud

Following on from the post last week as to whether fraud should unravel everything. Here are a few other thoughts. Tell us what you think in the comments section below.

When someone lies or exaggerates over any part of an insurance claim, the whole of any claim under that contract can be dismissed, even if most of it is essentially ‘genuine’. This position, which comes from the operation of the doctrine of utmost good faith contrasts with the general position of claims in tort which on the whole result in a Claimant being compensated for that part of his claim which is genuine even if he has exaggerated or even made up another part of it.

Certainly, in a a claim against a tortfeasor there is no contract and no such duty of utmost good faith. For the most part, the penalty tends only to be in costs unless the Defendant can use any inconsistencies to undermine the Claimant's credibility generally. However, this general position is now being challenged in a growing number of cases. One case which may find itself being resurrected is the old Privy Council authority of Hip Foong Hong v H Neotia and Company [1918] AC 889 in which Lord Buckmaster comments on the issue of tainting in the following way:

"A Judgment that is tainted and effected by fraudulent conduct is tainted throughout and the whole must fail …"

However, that case dealt with the opium trade and was an appeal from a decision in the Shanghai Supreme Court and arguments along these lines are probably unlikely to find favour at first instance in English law by themselves. However, it will be interesting to see how it develops particularly when you throw in other issues of public policy such as illegality and abuse of process.

Monday, February 19, 2007

'Stealing the Wave' by Andy Martin

Further to my post last week about Andy Martin´s new book Stealing the Wave, the following is a review I have written for a travel magazine.


Stealing the Wave tells the story of the rivalry between two of the world’s legendary big wave riders of the 1980s, Ken Bradshaw and Mark Foo. Bradshaw, the ascetic, corn-fed mountain of a man from Texas and Foo, the vain, publicity-seeking entreprenneur. Both fighting for supremacy of Waimea Bay in Hawaii which is the surfing equivalent of Hillary and Tensing having a punch up in the death zone of Everest. Just as Touching the Void rose above climbing, so this book does with surfing. It is a tale of adventure, courage and pride. A dark portrait of the human soul which ultimately ends in the tragic death of Foo in the presence of Bradshaw. A rare treat.

Saturday, February 17, 2007

Weekly Review

BEST OF THE BLOGS

HIGHLY ENTERTAINING: Pupil Barrister speaks out
We have only just discovered this blog. Since last October an anonymous blogger has been keeping a fictional account of time in pupillage. Read from the start. This is likely to fly around the legal world. See BabyBarista.

When is it appropriate to cite wikipedia
A look at the appropriateness of citing the online encylopaedia in legal cases. See Concurring Opinions.

Is Google News breaching copyright?
Examination of a decision of the Court of First Instance in Brussels on the legality of Google News. See Out-Law.

Debate on increasing small claims limit
US website reports on UK debate about raising the small claims track limit. See Self Help Legal Express (Shlep).

Questioning after charge
Comment on the possibility of allowing questioning after charge. See Head of Legal.

LEGAL NEWS

Judge speaks out on civil justice system
The civil justice system is in crisis, according to HHJ Collins, one of Britain's top county court judges. See BBC.

£1million for high flier who lost IQ in car crash
A former high-earning financial executive was awarded £1.1 million damages last week for crash injuries that wrecked her career. See Telegraph.

European Court says mandatory retirement lawful
Advocate-General of the ECJ gives opinion that UK age-discrimination law allowing employers to force staff to retire at 65 is legal. See The Times.

Fine for releasing nuclear waste into sea
The UK Atomic Energy Authority has been fined for releasing radioactive particles into the sea and illegally dumping radioactive waste. See The Independent.

Lloyds pursues firms for The Accident Group referral fees
A number of Lloyd’s syndicates has opted not to issue negligence proceedings against 638 panel law firms but will continue to pursue them for referral fees paid to a TAG dister company. See Law Gazette.

Mother who was refused part-time work gets settlement
A mother who took legal action against her employers for refusing to let her do her job part-time after giving birth settled out of court lastb week. See Telegraph.

AND FINALLY…

Brain teasers
Test how good your brain wiring is. See The Psychiatrist Blog.

Legal risks of Valentine’s Day
Discussion in new Zealand as to some of the legal risks for firms associated with Valentine’s day. See LawFuel.

When witness protection just disappears
In Australia, an informer in a Mafia case got witness protection. Now that the Mafia Boss has died, the protection lapses. Fair or not? See The Lady Justitia.

Amputee dolphin swims again
A dolphin who couldn’t swim after having her tail amputated has been given a new lease of life after beinf fitted with an artificial fin. See Channel 4.

Friday, February 16, 2007

Should fraud unravel everything?

In Churchill Insurance v Kelly, a claim arising out of a liability admitted road traffic accident, Gibbs J found that the Claimant had been dishonest (including perjuring himself) in his presentation of his loss of earnings claim. The deceit was bad enough that he also disallowed the personal injury claim because it hinged on the Claimant's credibility. The Claimant was also penalised in costs. However he was allowed to recover the cost of repairs to his car.

But should a person who has abused the process of the court by bringing a fraudulent claim recover anything at all? Fraud is a growth industry in the UK. Road traffic insurers find themselves beset with a growing number of fraudulent claims ranging from staged accidents to claims from imaginary passengers. Surely in these circumstances, there is a public interest in the courts taking a hard line and holding once and for all that fraud unravel everything.

Thursday, February 15, 2007

Small claims limit

As the debate rages as to whether the small claims limit should be increased, I note that the US website Shlep has made some very interesting comments with insights from over there. Well worth a look. Some argue that it would provide more access to justice by allowing a greater no cost jurisdiction. Others say that it would provide less access to justice as litigants risk being without the legal representation they might well need. In particular, it could end up discriminating against the least well off in society, those who do not have a legal expenses policy and who cannot afford to pay privately. Beyond these great issues of principle, fopr the very junior Bar, it might significantly affect their practices as small fast track trials very often are their bread and butter and enable them to keep themselves afloat in the early years.

Wednesday, February 14, 2007

Chasing a dream

I am currently reading a review copy of Andy Martin´s new book Stealing the Wave about the battle for supremacy at Waimea Bay between two legendary surfers Ken Bradshaw and Mark Foo. Although I intend to post a review later on, for the moment suffice it so say that it´s a fantastic read for surfers and non-surfers alike. He describes how Ken Bradshaw came out of Texas and took on the North Shore of Hawaii. However, for him surfing was not just something which he happened to be doing. It defined him. Just as Michelangelo took a block of marble and might produce an elephant by carving away everything that did not resemble such an animal so it was for Ken Bradshaw and surfing. Everything else was jettisoned. Reminds me of the comment by former Malibu surfer Bob Cooper about Miki Dora in Dora Lives by C.R.Stecyk II and Drew Kampion, “Was a waste of a life worth a few good waves and a legend?”

For many surfers the answer to this may be yes. However, it raises the much wider question of identity. It is only a very few people who truly take on a single mantle of identity. Some people become over the years the archetypal barrister or solicitor. Judges sometimes do the same. The question it leaves me asking is whether these are people who live with such passion that they end up truly being themselves in all their glory or whether on the other hand, simply through sheer force of will, they shut out all the other myserious and varied parts of their personalities in favour of a dream. Kind of like Bradshaw´s search for the perfect wave. As Andy Martin said, for Bradshaw "[N]othing real could ever match up to his imaginary, ideal wave."

Tuesday, February 13, 2007

Civil Justice System in Crisis?

BBC News reported today that HHJ Collins, familiar to many of us as a well respected Judge at Central London County Court, told Radio 4 listeners that the County Court system was in chaos.

HHJ Collins highlighted a lack of funding and staff shortages as the cause of serious administrative mistakes. He gave the example of Defences not finding their way to the court file, leading to judgments being entered in default.

Monday, February 12, 2007

Weekly review

BEST OF THE BLOGS

How suggestible are witnesses?
Discussion by a psychiatrist as to how suggestible witnesses are to leading questions. See The Psychiatrist Blog.

Joint tenancies
Paralegal blogger on the dangers of signing up to a joint tenancy. See Nearly Legal.

YouTube legal issues
Nick Holmes on dispute between YouTube, its parent company Google and Viacom. See Binary Law.

US Personal Injury Guide
The Self Help Legal Express (Shlep) gives a useful guide to personal injury law ion the US. See Shlep.

LEGAL NEWS

Solicitors to strike
Criminal defence solicitors strike to hit court cases this week. See The Times.

Replica football shirts dispute
The consumer group Which? today warned retailer JJB Sports that it intends to sue on behalf of customers who have been overcharged for replica football shirts. See The Guardian.

School taken to court over veil ban
The father of a 12-year-old Muslim girl began legal action against her school last week after teachers refused to allow her to wear the full-face veil or Niqab during lessons. See The News.

Girl wins £6 million compensation
A 12-year-old girl was awarded £6 million compensation due to a negligent delivery which caused brain damage. See BBC.

Immigration rules review dismissed
An application for judicial review of a change to the immigration rules made by the British Association of Physicians of Indian Origin failed last week. The change abolished permit-free training and made it mandatory for doctors from outside the European Union to obtain a work permit to gain employment in the NHS. See Zee News.

Campaigners examine legal basis of NHS
The campaign to save Bartelt Hospital in Felixstowe has turned its attention to examining the takeover of the hospital when the NHS was created in 1947, to see if it was legal, and whether the government should be taking into account benefactor Dr John Bartlet's wishes in his will. See Evening Star.

AND FINALLY…

What a wonderful world
Each day Clare Grant lists three beautiful things on her blog. Quirky as Amelie, as feel-good as A Wonderful Life. See Three Beautiful Things.

Law and haiku
A beacon of creativity in the legal world is a website edited by US lawyer and writer David A. Giacalone where you’ll find haiku and poetry mixed with intelligent legal, ethical and cultural debate. See f/k/a.

Meet ‘Barrister A’
Charon QC introduces a colourful new character called ‘Barrister A’ to his blog. See Charon QC.

Vote for Rob the Rubbish
Robin Kevan (aka Rob the Rubbish) has been nominated as one of Britain’s 50 wisest people. To vote for him and four others from a list including sages such as Lord Bingham, Shami Chakrabati, Julie Walters and Arsene Wenger, see Saga Magazine.

Friday, February 9, 2007

Corporate Responsibility

Beyond manslaughter, issues abound about the wider human rights responsibilities of corporations. Since the owner of the company that manufactured Zyclon B gas was executed in the Nurembourg trials following World War II, the question has been asked whether corporations be tried for crimes such as genocide or human rights violations.

Practically, the answer for the moment is no. The current international criminal tribunals and the international criminal court can only try individuals. Although the managers of the infamous RTLM radio station in Rwanda could be charged with inciting or instigating genocide, the company itself could not.

Some will ask should corporations ever be liable for human rights abuses? After all a corporation’s primary responsibility is to its shareholders. Human rights do not always make good business. The counter argument is that corporations have been involved in serious human rights violations in the past. In the Democratic Republic of Congo it was long suspected that Western companies were supplying financial and logistical aid to rebel factions in return for access to mineral resources. As trans-national corporations grow more economically powerful the risk of abuse increases.

There is no clear answer to this debate. Some companies self-regulate by voluntarily adopting human rights statements. Meanwhile NGOs continue to press for hard legal rules to define when a company commits an offence and how they should be punished.

Winter Thoughts


“Many of the phenomena of Winter are suggestive of an inexpressible tenderness and fragile delicacy.” Henry David Thoreau.

The sight of fresh snow in the morning always makes me feel like a child again. On Thursday morning the mucky grey streets of North London were coated in pure white. Bright daylight. Clear cold air. Bare tree branches and leaves rimmed with snow. Hard edges and roof lines softened. School-released children sledging on Hampstead Heath. Drizzle by afternoon. Slush on street corners.

Thursday, February 8, 2007

Corporate Manslaughter Bill

Aidan's post on the Corporate Manslaughter Bill this week also raises another question which needs to be cleared up before the Bill enters law. It is whether it should ensure that the new offence of corporate manslaughter covers British companies who cause deaths abroad. Although individual British nationals can be prosecuted for manslaughter committed abroad, in its current form the Bill leaves a serious loophole in respect of companies in that it only covers those deaths which occur in this country. This is despite the fact that it is quite possible in the case of companies that many of the actions that lead to a death may take place in this country. For example, the question arises as to what would happen if there was a repeat of the 1984 Bhopal disaster, in which a Union Carbide plant in central India leaked 40 tons of toxic gas and killed more than 3,000 people, but with a British company responsible and the deaths being its British workers. Add to this the fact that it is perfectly possible for inquests to be held in this country in relation to deaths abroad and further that such a hearing could well reveal serious management failures having been made on domestic soil. It seems unlikely that in circumstances such as these, there would not be many who may then regret that the Bill’s jurisdiction had not been wider.

Wednesday, February 7, 2007

Corporate Manslaughter Bill

The Corporate Manslaughter Bill ran into fresh difficulties earlier this week. The House of Lords amended the Bill so that it also applies to duties owed to "anyone held in custody". Thus the prison service and the police force would face more extensive potential liability. The amendment was proposed by Lord Ramsbotham in a powerful speech based on the twin principles of equality before the law and equal protection under the law.

The government is reported to have reacted angrily. The Home Secretary has even threatened to abandon the Bill altogether. Perhaps he needs to be reminded why the Bill was introduced in the first place. Four major prosecutions for corporate manslaughter have been brought in recent times, most recently in response to serious railway acccidents. They all failed. As the law now stands, many feel it would be impossible in practice to get a conviction. Companies are adept, for example, at delegating responsibility to lower level managers to avoid conviction. Whether the new Bill changes the legal landscape sufficiently is a vexed question. It is clear though that legislation is needed, if companies are ever to be held to account for corporate manslaughter.

Life at the Bar: Chambers (part 2)

This article has recently been published in The Times Online.

The Temple along with Gray’s Inn and Lincoln’s Inn are where the vast majority of barristers are based in London. Each has its own particular characteristics but all have the scholarly air of an Oxbridge college. It is to these almost other-worldly destinations that solicitors and their clients come to set out their often extremely worldly woes.

As you walk into the heart of the Temple from the Strand the thing that hits you most is the sense of history. It’s as though the tranquillity of the surroundings has led time itself to settle in and take a break from its relentless march. However, lest you should forget its presence, the sun dial in Pump Court (once home to the infamous Judge Jeffreys) reads, “Shadows we are and like shadows we depart”.

As for my own chambers, they are at the bottom of Middle Temple Lane, past the Middle Temple Hall where Shakespeare’s Twelfth Night was first performed. They were designed by the architect of the Houses of Parliament, Sir Charles Barry and overlook the Temple Gardens which has a statue in the middle engraved with the unlikely observation that “Lawyers were children once”.

As you go into a chambers, they still tend to reflect their surroundings in many ways with the names on the board, the shelves of old law books and the Punch cartoons of long-gone Judges. However, despite the daunting surroundings and the corporate nature of many of the clients, the feel of many chambers is homely and slightly dishevelled similar to the rooms of many academics. Barristers often spend their whole lives in one set of chambers and they come to regard many members of that chambers as an extension of their family and this comes through in the atmosphere.

Another thing which hits you early on is the contrast between the high status of many of the barristers and the poor quality of the work environment, despite the beauty of its architecture. Overcrowding, for example, and lack of central heating or air conditioning are common and some Chambers even operate a system of “hot-desking” with barristers sharing communal desks. However, it’s fair to say that many Chambers are now modernising and whilst most in London used to be based in the Inns of Court which surround the High Court, many are now moving out into commercial office space. Some are even buying their own buildings.

Chambers themselves are basically collections of self-employed barristers who have banded together to form a common unit with their joint income running into millions of pounds. They share their expenses through the payment of rent and with that hire clerks and administrators to run their practices. Unlike firms of solicitors, each barrister takes home only what he himself bills out. This means that their business model is to aim to maximise the earnings of the particular members and not necessarily continually to expand unlike many law firms. However, with the increasing competition at the Bar small chambers are finding that they have to expand to some degree in order that they can provide a broader support service for solicitors.

Technically in most chambers each member has an equal say. However, the appearance of democracy can sometimes be slightly illusory with many big decisions being taken by key committees and only in extreme circumstances would they not be rubber-stamped by a chambers’ meeting. The main players tend to be the head of chambers and the highest earners. This is not just based upon seniority but also upon the fact that contributions tend to include a percentage element and so it is sometimes the case that a minority contribute a disproportionate amount towards chambers’ expenses.

As for the day to day living on arrival in Chambers, there are various traditions which have to be taken into account. As with MPs, barristers traditionally don’t shake hands on meeting although this is now probably on the decline with the younger bar. Chambers tea sounds a pretty simple affair but it still takes some getting used to. Best advice for pupils on such occasions is not to pipe up with anything unless asked.

Becoming a member of a chambers is no mean feat and applications for pupillage are extremely competitive. Gaining a tenancy is even more so. However, for those with the ability, persistence tends to pay off and eventually you are likely to find a chambers which will suit you. The flip side of this competition is that it has transformed the bar into a meritocracy and any remnants of its slightly stuffier history and hints of possible snobbery have fallen by the wayside.

Perhaps the most striking thing about the Chambers system is that at a time when economics points towards corporate life and the end of the old institutions, it has not only survived but is in fact flourishing. John Mortimer said that the Bar allowed people “To escape jury duty in England, wear a bowler hat and carry a copy of the Daily Telegraph.” Whilst the jury exemption and the bowler hats have now gone, there is no doubt that Rumpole or his contemporaries would still feel at home in a modern Chambers.


This is the second in a series of articles on Life at the Bar. The others can be found at:
Chambers (part 1)

Tuesday, February 6, 2007

Why lawyers specifically should surf

Parts of this article will appear in 'Why Lawyers Should Surf'' (co-authored with Dr Michelle Tempest) which is now available on Waterstone's website here or can be ordered from XPL Publishing on 0870 079 8897 (p&p is included). Extracts from the book can be found here. To see a review of the book in The Independent click here. For more articles on stress visit The Psychiatrist Blog.

Several studies have cited that lawyers have an above average rate of low mood. In the early 1990s a John Hopkins University study compared the rates of depression among one hundred and four occupations and found that lawyers were nearly four times above the average rate of depression. This then begs the question ‘why do lawyers have such a high level of depression’? There are several hypotheses for this, well beyond the explanation that law is a stressful and busy job.

Professor Martin Seligman argues that the key thing about lawyers is that they tend to have pessimistic personality types. When lawyers are asked the famous question: ‘Is the cup half empty or half full?’ most respond by saying half empty. This somewhat pessimistic response may be a distinguishing advantage within the legal profession, because viewing troubles as pervasive and continuing, is at the very heart of being a prudent lawyer. The inherent and honed ‘scepticism skills’, enable the lawyer to see every conceivable hiccup or catastrophe that might occur in legal transactions. Therefore, the ability to anticipate any pending or possible snare or disaster gives a positive legal outcome, as the lawyer can then help clients defend against potential negative eventualities. Hence, ‘pervasive pessimism’ and possibly ‘catastrophizing’ can be seen as a powerful legal tool, helping to anticipate disaster, and encouraging lawyers to think the worst before it has happened. However, on the flip side of the same coin, is that if you take that same pessimistic mindset home with you from the office, it may form part of the answer as to why lawyers are more likely to suffer with low moods.

Another hypothesis is that that lawyers tend to express ‘high-dominance’ as a key feature of their personality; again something which aids successful legal careers. Key features of a ‘high-dominance’ personality include people who: interrupt others, talk longer, take charge of conversations, decide when to change topic, state strong preferences and opinions, have an unyielding manner and tend to enjoy giving instructions and advice. ‘High dominance’ personalities also tend to believe in statements, such as, ‘winning is more important than playing the game’. This may be an integral part of being a successful lawyer who never looses a battle, however, when this is mindset extended outside the workplace it fits less well with the challenges of daily life. When things have not gone the way high dominance personalities have planned, it can be a time when they struggle to manage or cope on a psychological level.

A further hypothesis is based on the accumulating psychological evidence that much work stress arises from interacting with people rather than things. In fact, ‘emotional labour’ is more mentally taxing than the old fashion labour jobs that were more physically taxing. It has been shown that the more your job requires you to fake emotions, the more emotionally detached you become from those around you. Hiding or faking emotions, can lead to ‘clinical burnout’. Since lawyers keep a professional detachment from their cases and cannot get too emotionally involved, this could potentially lead to the burnout state of mind. Burnout can result in symptoms of emotional exhaustion, fatigue, detached attitude towards others, low sense of effectiveness, helplessness and also low mood.

The risk of the inherent pessimism means that lawyers should be especially careful not to extend the negative mindset perspective into other areas of their lives. This book will hopefully assist the reader in finding perspective,, so that even during the most difficult times in life a of context can be found, which can also provide something to learn and grow from. As Shakespeare said, “There is nothing either good or bad, but thinking makes it so”.

Saturday, February 3, 2007

Hancock's Half Hour - The Barrister

Weekly Review

BEST OF THE BLOGS

Counsel to Counsel
Pupil Blogger continues his tortuous journey through pupillage. See Pupil Blog.

Keep it out of the courts
Magistrate speaks out against people bringing petty disputes to the criminal courts. See Magistrate’s Blog.

The price of silk
Discussion as to what it really takes to get silk. See Geeklawyer.



Stressed out
Psychiatrist gives advice about handling stress. See The Psychiatrist Blog.


LEGAL NEWS

BSE slip re-opens claims fear
Fears of claims over BSE were raised once more when it was revealed that a cow in Wales had entered the food chain at the height of BSE. See Solicitors’ Journal.

Solicitors to get referral warning
All solicitors are to receive a warning that they face disciplinary action if they breach the referral rules. See Law Gazette.

Coroners get more powers
Coroners will be given stronger powers to ensure lessons are learned from a sudden death. See DCA.

Wriggling out of an agreement?
Discussion of recent Court of Appeal case which held that breach of an undertaking to the court could give rise to a cause of action for the other parties. See Impact.

Age discrimination claim
Freshfields have been hit with an age discrimination claim from one of its former partners. See The Times.

Contempt for the law
The Court of Appeal held that a judge should not have found the appellants in contempt without reasons and allowing legal assistance. See Lawtel.


AND FINALLY…

Fighting litter
From the Himalayas to Ben Nevis and Mount Snowdon, Rob the Rubbish has been cleaning up the litter and inspiring a few people along the way. See Rob the Rubbish.

Wacky warning awards
Annual awards for the wackiest warnings on labels. See Wacky Warnings.

Journal of Legal Nonsense
Finally, the launch of a law journal with a genuinely interesting subject. See Consortium.

Friday, February 2, 2007

Taking the risk

Following on this week's theme of discussing the compensation culture.

Whatever the truth about the compensation culture, there is plenty of evidence for it coming from the personal injury sphere where in the past thirty years the law has been extended into all sorts of realms never before expected. Part of this has been down to judicial activism and partly due to both national and European legislation. A classic example comes in the area of sport in which we have seen liabilities established in recent years not only against players on the field but even as far as referees and governing bodies. As for legislation, this is most frequently seen in the health and safety at work regulations which were introduced in the 1990s and which place onerous duties on employers in relation to health and safety. This change towards a culture of blame and arguably away from personal responsibility is reflected in the increasing costs of litigation.

No-one likes to see the NHS and other such institutions losing money and resources on legal claims. Nor do any of us like having to pay increased insurance premiums. However, there are not many victims negligence who do not feel the right to be compensated in one form or another. The issue when it comes to it is the amount of risk that society allows us all to bear. The real difficulty with these extensions to the law of negligence and the inevitable increase in claims which follow is that people become more risk-averse. Not only may it discourage the little kindnesses by people such as doctors and teachers but it also potentially has an adverse effect on clinical judgments and the way people approach their work generally. As Tony Blair warned on 26 May 2005, “A risk-averse public sector will stifle creativity and deny to many the opportunities to be creative while supplying a few with compensation payments.”

Last year the government brought in the Compensation Act which allows a court to be able to consider the wider social value of the activity in the context of which the injury or damage occurred. Perhaps it is now time to consider reviewing the whole law of compensation for injuries more generally. To have an open debate in which issues such as personal responsibility and accountability can be discussed without people feeling that it is a matter of one extreme or the other.

Parts of this article appeared in the book The Future of the NHS edited by Dr Michelle Tempest.

Thursday, February 1, 2007

The Compensation Culture

By Aidan Ellis

This will be the February 2007 editorial for the PIBU Law Journal.

This month provided more fuel for the tabloid fire against the so called compensation culture. The newspaper headlines this morning again concerned large negligence pay outs. This time the culprit was the NHS and not the prison service. We are told that the NHS paid out more money in negligence claims last year, than its entire budget deficit.

On a related point, a District Judge commented to me recently that claims are being brought that just would not have been contemplated even ten years ago. He had in mind claims for minor soft tissue injuries and bruising lasting a couple of weeks. These are commonly now brought, especially on behalf on child Claimants, and typically attract settlements of £1,000 or less. But is it necessarily wrong to bring a low value claim, where the law permits it?

By fixating on large pay outs, the press coverage often masks the real problems with our legal culture. Many interesting and concerning issues revolve around conditional fee agreements and their ally the new predictive fee regime. Perhaps after 5 – 10 years of conditional fees it is time for personal injury lawyers to engage in a serious dialogue about how they have affected our practices.

One concern with conditional fee agreements is that they may encourage speculative claims. These attempt to push the boundaries of the law, so exposing the law and lawyers to media criticism. I also wonder if there is a concern about the integrity of the profession. What effect do conditional fees have on the early settlement of cases? Finally, we might question whether conditional fees have helped access to justice. Do the most risky cases attract the best legal representation? Whatever the right answer to these questions, there are serious questions for our profession hiding behind the newspaper outrage.