THE DIGITAL REVOLUTION? COME BACK HEATH ROBINSON ALL IS FORGIVEN?

One of the many disconcerting features of getting older is when young people look blank as you mention the name of someone you regard as seminal. I have had recent experience of this with James Thurber, my favourite comic writer, and even Rex Harrison. Rex Harrison attended the same dance classes as my grandmother in Liverpool in the 1920s. Whilst I would not necessarily expect a millennial to be aware of this specific fact, it is nonetheless disturbing when someone has never even heard of him.

Although I have not yet tried, I would anticipate a similar reaction if I mentioned Heath Robinson. Heath Robinson was a cartoonist who was best known for his drawings of what Mark Bryant described as “ridiculously complicated machines for achieving simple objectives”. The popularity of his cartoons probably reflected interest in engineering in the Industrial Age and the English fondness, to use a good Yorkshire expression, of ‘Knackling’ machinery together. The humour was completed by a simple but absurd ultimate objective of the machine. Ridiculously complicated mechanisms were shown for “removing a wart from the top of the head” or “resuscitating stale railway scones for redistribution at station buffets”. My favourite creation was the “multi-movement tabby silencer”, which automatically threw water at serenading cats.

Heath Robinson died in 1944 and could not have guessed that he was to be an inspiration to the IT industry.

When we launched Complete Counsel just over two years ago, it was our intention to use digital technology for basic service provided by the support business so far as possible. Whilst we have been able to achieve an efficient and cost effective way using currently available software, it is clear to us that the available products do seem to have a Heath Robinson quality in terms of a degree of complication disproportionate to their value in terms of functionality. What we really need is a very simple programme which can receive Instructions and enclosures and transmit the same internally so that they can be worked upon efficiently and used in Court. Having spoken to a number of IT providers, the best I have achieved so far is an acknowledgment that this is “a good idea”.

More generally, complaints about the quality and functionality of IT systems appear to be everyday conversation in Chambers and law firms. The technology does not appear to have moved on in any substantial way since first introduced over 20 years ago and developments seem to occur in an ad hoc way. The IT industry has possibly based its business models on those of the operators of motorway service stations; there is no real incentive to offer something of high quality at a reasonable cost when there is demand for average quality at a high price.

What is often offered is an additional programme which in some ways will supplement and improve the basic programme. These packages are called ,possibly in deference to Heath Robinson , ‘bolt ons’. Whilst many of them are clever and slick, in practical terms they only offer a marginal improvement on the basic functionality at an additional cost.

So I continue to receive Instructions and enclosures in a number of different ways. I might be sent a large number of PDFs, often too many for one email. These PDFs are not necessarily clearly labelled ; usually they require considering and ordering before I can start work on them. It has to be acknowledged that this is better than receiving what appears, to all intents and purposes, to be a client’s entire file, sometimes over 2,000 long in one PDF. Some clients operate by permitting access to a secure platform within their own system. However, access to and use of this platform can prove cumbersome and time consuming.

One IT salesman suggested to me that the problem was rooted in the difficulty of claiming ownership of intellectual property in relation to software systems. This disincentivised time and money being spent on their development. This appears to be a paradoxical situation in which possible developers are deterred because the solution is such an obvious one.

It may be that the way forward would be for the Bar to consider collectively whether better IT provision could be achieved. Many practitioners are cynical about the effectiveness of the Bar Council in promoting the continuance of the Bar as a robust and independent profession. This objective could best be achieved by enabling barristers to become laptop lawyers, operating at minimal basic cost. Facilitating the financing of appropriate software to achieve this objective could be a reasonable aspiration for the Bar Council.

All change – new discount rate

On the 27th February 2017 the MOJ announced that the discount rate, previously set at 2.5%, would drop down to -0.75% with effect from the 20th March 2017.

Whilst a drop had been expected no one could have predicted such a massive decrease. 
The resultant effect will be a significant increase in respect of future losses in personal injury claims.

Whilst the government has imposed the change it has failed to provide amended Ogden tables to accompany the rate change. However, PI calculator has provided amended calculations to assist in the short term.

What does this change mean?

  • Claimants are likely to withdrawn part 36 offers.
  • Defendants are likely to try to accept part 36 offers before they are withdrawn.
  • JSM’s are likely to be postponed as Claimant’s seek to re-calculate and Defendant’s await the possibility of the discount rate being re-visited following potential judicial review.
  • There are likely to be arguments over the applicability of part 36 offers and whether they afford cost protection in the future.
  • Schedules and Counter-schedules will need to be re-drafted.
  • There may be arguments over the calculation of a -0.75 discount rate given that it is not as straight forward as averaging the rates for 0-.5% and -1%.
  • PPO’s are arguably redundant, as it would make little sense for a Claimant to choose a periodical payment when they could have a lump sum calculated on a negative discount rate.
  • Costs are likely to increase given that an increase in damages will make higher cost bills proportionate.
  • Insurance policies are likely to increase in cost to cover the additional financial liability.
  • What becomes of Table 27?

Does this impact on all future losses?

– It is unclear at present whether it applies to Roberts v Johnstone calculations for future accommodation costs. If it were to apply then this would lead to a negative outcome, which can’t have been intended given that the basis for altering the discount rate was to make future loss figures fairer for Claimants.

Conclusion

The imposition of a negative discount rate absent guidance will lead to uncertainty, increased costs and satellite litigation.

Come to our Chronic Pain Seminar

Chronic pain is a controversial presentation in PI claims. Claimants often seek damages for what are said to be life-changing conditions, which are not always wholly explained by established pathology and which Defendants and insurers frequently dispute. Issues as to vulnerability and causation cause further complication.

Pro-Vide Law, in association with Complete Counsel, are presenting an interactive seminar on chronic pain at 2pm on Friday 5th May at The Doubletree Hilton Hotel, 6 Sir Thomas Street, Liverpool.

We have a great line up of Speakers to include Dr Andreas Goebel – Associate Professor at the Liverpool Walton Centre and Assistant Professor for Pain medicine at The University of Liverpool, Dr Eric Ghadiali – Clinical Neuropsychologist, Professor Gus Baker – Emeritus Professor and Clinical Neuropsychologist, and Barristers Charles Feeny and Tom Goodhead from Complete Counsel.

The seminar will explain the various pathologies which can be implicated in a chronic pain disorder by reference to a fictional case and discuss the criteria for diagnosing such a disorder. The alternative possibilities of a factitious disorder or malingering will be explored.

The seminar will include an interactive “hot tubbing session” where the experts will present conflicting views as to credibility, diagnosis and prognosis.

The audience will be given the opportunity to raise issues and questions with the experts. Spaces are limited for this event. Tickets are £35.00 per person.

Registration – 2:00pm
Seminar – 2:15 – 4:30pm

Seminar followed by drinks and a chance to discuss the issues.

To book a place, please email claire.labio@completecounsel.co.uk

Come to our joint CIOT/STEP seminar with tax advice from Michael Sherry

Come to our free joint seminar on Monday March 20th 2017.

Venue: Brabners Solicitors Horton House, Exchange Flags Liverpool L2 3YL

Registration: 4.30pm
Seminar: 4.45pm – 5.45pm

We invite you to stay following the seminar and join us for drinks. RSVP to claire.labio@completecounsel.co.uk

Topics covered will include case studies on:

  • Non-domicile changes
  • IT/CGT – conditions A and B
  • IHT – previously domiciled residents
    – 15 year rule
    – Excluded property trusts
    – “Foreign owned”
  • Implementation
  • Pre-domicile planning? Now and in the future
  • Trusts – “protected” trusts
    – Other changes

Complete Counsel Announces Two New Additions

Complete Counsel, which launched in 2015, is an innovative digital based model which enables Barristers to practice as sole practitioners or from existing Chambers, but with appropriate support from experienced experts on a contractual basis.

Claire Labio, Practice Director commented ‘We are approaching our second anniversary and experience has so far shown that if a Barrister does engage and follow the guidance given they will see real growth in terms of practice and cash flow.

‘I was recently asked if Barristers using the service from outside of Liverpool were just ‘Door Tenants’. Traditionally Chambers accepted Barristers on to their door to enhance the offering visually whilst not really having much to do with the every day development of that Barristers practice. We do not use the term ‘Door Tenant’ specifically for that reason. Our Barristers receive one to one personal development whether they are full time or not.’

The two new additions are Tom Goodhead and James Byrne, both practitioners at 9 Gough Square in London. Tom and James were looking for a northern base to complement their southern practices in a way which would help them but would not conflict in relation to their primary tenancy. ‘Tom and James are experienced PI, Clinical Negligence and Product Liability specialists. They recognised that we could offer them solid links and exposure in the North which would in turn increase their practices’.

Tax Surgery with tax advice from Michael Sherry

Date: 7th February, 2017
Venue: Ground Floor, The Plaza
Registration: 4.00pm
Surgery: 4.15pm – 5.15pm followed by a small drinks reception

RSVP to claire.labio@completecounsel.co.uk by 26th January 2017

Topics covered will include case studies on:

  • Liquidations where shareholder involved in same/similar business subsequently
  • Property SPVs with distinct shareholders – purchase by one – risks to CGT treatment to others
  • Farming and loss relief where there is a profit in year 6 which is eliminated by capital allowances
  • Loans to participators
  • Applying FRS 102 to loans from participators which will not be called upon
  • Accelerated payment notice in respect of PAYE – whether and when deductible for CT
  • Dividends paid to non-resident shareholders – ITTOIA 2005 ss. 399, and 811
  • Corporate client of LLP – Profits within Patent Box

This should be of particular interest to experienced and senior practitioners. The intention of this surgery is to stimulate debate and allow those present to discuss and ask questions about matters which concern them. There is no charge for this event, however to stimulate debate numbers are limited and early booking is essential.

If there are any specific issues that you would like Michael to discuss please email me up to 48 hours prior to the event for submission.

A complete answer to a changing legal landscape?

Claire Labio of Complete Mediation was featured in the recent issue of Liverpool Law. View the article below or take a look at the complete issue here (Claire’s issue appears on page 21).

Reflections from SITGES

REFLECTIONS FROM SITGES

Mediation: Return of legal realism?

I found the course stimulating and challenging. It gave me a real insight into mediation as an overall psychological process, with the intention of enabling a resolution which was acceptable to the parties, as opposed to one begrudgingly accepted in conventional negotiation or imposed by a Judge. Having attended mediations as a practitioner, I had moved from my initial perception of mediation as a type of joint settlement meeting, bizarrely moderated by a chummy character with a packet of chocolate biscuits. However, the course gave me considerably more insight into the nature and value of mediation.

At a personal level, I have reflected on really how poorly in certain ways litigators and indeed the law addresses the process of dispute resolution in contemporary society. I was surprised to find that so many lawyers were still locked into stereotypical positional negotiation. Similarly, the law’s approach to significant issues might be seen to be arcane and backwards looking. Often the law can be seen as an existing corpus with little grasp of the real dynamics of a dispute in its contemporary context. In an earlier blog reflecting on the EL trigger litigation, “IEG v Zurich: Insurance Law for the Digital Age?”. We suggested,

“Reading the speeches of the Supreme Court in IEG v Zurich, it is striking how all the justices attempt to fit what can be perceived as an obviously fair and reasonable solution into the historic rubric of insurance law, even though such law developed in very different times and commercial practices.

The advantages of the digital age will only be fully exploited if it is understood that digital process is not a means of supporting a traditional approach, but rather a different approach in itself reflecting the need for much greater speed and flexibility in the exchange of information”.

There are interesting historic parallels here. Different structures and approaches have developed because of a perception of the inability of the existing processes and law to deliver satisfactory solutions in developing social and economic conditions.

An example close to home for me is the Liverpool Court of Passage, a court of voluntary jurisdiction which was established in Liverpool as the Port developed through the Industrial Revolution. The delays and arcane practices of the traditional courts were not consistent with the type of swift resolution necessary to serve the parties’ commercial interests. By way of contrast with Jarndyce v Jarndyce, the Liverpool Court of Passage in its prime prided itself in proceeding from incident (not issue of proceedings) to judgment in less than three months.

Similarly analogous is the development of legal realism in the United States of America, in particular through the jurisprudence of Oliver Wendell Holmes Junior and Professor Karl Llewellyn, a remarkable Professor of Law at the University of Yale. Comparable issues had arisen with the rapid development of the American economy in the late 19th, early 20th Century, and a perception that legal processes and the law were not able to deal adequately with the demands of rapidly growing commercial entities. The theory of legal realism is subject to different interpretations, but can perhaps best be described as focusing on how a Judge actually resolves a case, including the human, political and moral perspectives, as opposed to the traditional approach characterised as legal formalism. Legal formalism presupposes that a Judge reaches a decision based on a mechanistic application of the law to an objective process of factual finding. According to its proponents, legal realism attempted to define what Judges actually do, as opposed to what they say they do.

It could be argued that a similar position in the early 21st Century has arisen in the United Kingdom to that seen in the United States, when legal realism emerged. The legal system is arguably more conducted for the benefit of litigators and judges, rather than the litigants. It is not therefore surprising that mediation, with its emphasis on listening to the parties and identifying the issues which are important to them, is seen as increasingly attractive.

Legal realism is often characterised as a failure as legal formalism continued at least at a conventional or dogmatic level to be the accepted approach. However, this is perhaps to misunderstand the relevance of legal realism, which could never entirely replace a traditional approach, but acted as a perspective so as to challenge and modify the traditional approach. It is possible that the development of mediation and greater understanding of it will have a beneficial effect on more traditional forms of dispute resolution .

CF

Will the BSB ABS bring Trial Lawyers to the UK?

Solicitors v barristers – the great ‘fusion’ debate

A conversation is taking place over lunch between a barrister and his wife’s friend, visiting from Italy. “You mean the person who serves the coffee?” scoffs the Italian with surprise. “No. A barrisTER!’ is the retort. “Well how is that different to a lawyer?”

This is an oft-cited, mundane conversation between English barristers and foreign laymen. It is a symptom of a rigid English legal system that has long distinguished between solicitors and barristers. In simple terms, the former prepares or conducts a case, while the latter argues that case in front of a judge, should it proceed to the courtroom. As a result, the concept of a ‘trial lawyer’, who deals with a case from its conception to its conclusion in court, has long eluded our antiquated English legal structure.

The debate about fusing the two sides of the profession is not a new one. One view is that fusion should be pursued as a way of reducing costs. Why should two fees be charged, one from a solicitor and one from a barrister? Fusion would avoid the waste that results from the duplication of work. It would mean providing one system of training for all aspiring lawyers, rather than the current dual-track entry system.

On the other hand, the independence of the Bar is of paramount importance. A barrister has an overriding duty to the court, and the cab-rank rule means that in theory at least, barristers are available to all those who seek their services. While solicitors are best viewed as businesses, barristers may still be regarded as guardians of the courts.

De-regulation – a different kind of fusion?

The parameters of the fusion debate have in recent years been shifted. Deregulation has opened the Bar to the world of powerful market forces. Barristers are no longer mysterious and immune gatekeepers of justice. They too are businesses. The fusion debate must now take into account the huge swing towards deregulating the legal profession that has taken place in the last 5 years.

Since October 2011, the Solicitors Regulation Authority has approved several hundred applications for alternative business structure (ABS) licenses. An ABS is a firm where non-lawyers can manage or own firms, widening the pool from which equity can be raised and diversifying the range of legal services that can be provided. ABSs can provide ‘one stop shops’, in that they are not limited in the services they can offer to the public.

Deregulation has opened up a world of possibilities for legal services on offer to the public. One example is the start-up ‘Casehub’. Founded by recent Cambridge law graduate Michael Green, this business model seeks to use the internet to unite people with common grievances, enabling class actions to be brought. The costs of litigation are financed by external investors, who invest in the prospect of being paid a portion of any final court award. 22,000 claimants were to challenge excessive penalty parking charges.

Other ABSs have seen investment from Dragons’ Den investor James Caan, while The Co-operative Group has also entered the legal fray. The emergence of savvy entrepreneurs onto the legal scene means the English legal system should brace itself for a colossus of fresh ideas.

As is often the case in the business world, equity investment encourages innovation, diversification and the pursuit of greater efficiency. Equity investors detest empire building. They promote lean, efficient and attractive operations. It is with this in mind that we return to the title of this piece; will the ABS bring trial lawyers to the UK?

ABS – fusion by the backdoor?

Rather than focusing on a rigid solicitor/barrister dichotomy, it appears the fusion debate has been swept aside by the wind of deregulation. It is predicted that trial lawyers, in the form of ABSs, will emerge as part of the drive for innovation and the quest for greater market share.

Trial lawyers will not emerge because of arbitrary, full-blown legal change. Nor will it necessarily be a conscious choice. Trial lawyers will be an incidental and natural result of the innovation resulting from the market pressures caused by deregulation.

In areas such as personal injury clients will begin to flock to ABS. The ability for a single entity to handle a case, to master its progression and to argue that case in court, all the while only accepting a single fee, will be too attractive a prospect to refuse. In this brave, market-driven world trial lawyers will take the form of barristers supported by paralegals and other support staff. Together, these entities will be able to do much of the work of a solicitor, such as helping to prepare witnesses for trial, as well as then arguing the case at trial.

As oppose to fitting a client’s needs around what the legal world is capable of offering, an ABS provides the requisite malleability to shape its service to suit the customer. By flipping the lawyer-client dynamic on its head, fusion will occur by the backdoor, because in many cases an ABS acting as a trial lawyer will the most appropriate structure required.

Further, ABS trial lawyers will be aided by the increased use of technology and the lack of a strict demarcation in staff-roles. New staff roles may emerge allowing one-stop ABS to cater to all clients’ needs. Casehub is merely one resourceful example of how technology can be fostered.

This organic, client-driven and innovative approach to fusion is less dangerous or dogmatic than any policy-driven arbitrary legal change. While the former marks a truly evolutionary progression, the latter would be to use a sledgehammer to crack a nut.

Conclusion

Trial lawyers will not emerge as a result of any detached academic fusion debate. Rather, fusion is being pursued organically as a result of deregulation of the legal market. ABS will lead to ‘one stop shops’ moulded to serve a client’s needs. Often, this will mean requiring an ABS to act as a trial lawyer, providing a full service from the start of a case to its finish.

The substance of English law is one of the most flexible and attractive in the world. It is about time the structures of the English legal system were allowed to catch up. Deregulation is the catalyst through which to pursue organic reform.

Photos from our Complete Counsel Anniversary Event

Last week saw Complete Counsel celebrate our 1st anniversary at a hugely successful event in Liverpool.

Friends, clients and partners of Complete Counsel gathered at the roof-top terrace at West Africa House for drinks and food, where we were also proud to announce the launch of Complete Mediation.

Photos from the event can be seen below. Many thanks to all who attended and made the event such a great success.

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