Wednesday 31 October 2012

New Judges with the names of Old Judges...

Seem to have missed this - George Leggatt QC has been made a High Court Judge.  Formerly of Brick Court and son of Sir Andrew Leggatt (Leggatt LJ as was and author of the current Tribunal system). It's getting a bit hereditary over at the RCJ with Stuart-Smith J being appointed last month (see here).  Just like old times with a Stuart-Smith and a Leggatt on the bench - bring back the 80s.

Leggatt J has taken the place of McCombe J who has been elevated to the Court of Appeal, following his judgment in the Mau Mau claims.

The Queen has been pleased to approve the appointment of George Andrew Midsomer Leggatt, Esq., Q.C., to be a Justice of the High Court with effect from 26 October 2012 on the elevation of Mr. Justice McCombe to the Court of Appeal.

The Lord Chief Justice will assign Mr. Leggatt to the Queen’s Bench Division.
Mr. Leggatt, 54, was called to the Bar by the Middle Temple in 1983 and took Silk in 1997. He was appointed a Recorder in 2002 and is approved to sit as a deputy High Court Judge.

Mr. Justice McCombe was called to the Bar by Lincoln’s Inn in 1975 and took Silk in 1989. He was appointed a Recorder in 1993 and a judge of the Queen’s Bench Division of the High Court in 2001 and was Presiding Judge between 2004 and 2007.

Sunday 28 October 2012

The Treasury must be rolling in the miners lose out..

The Court of Appeal have upheld the defeat inflicted on aging miners seeking to sue HMG as successor to the nationalised coal employers for their dodgy knees, allegedly caused by years down pit.  If successful, this could have cost the Treasury millions - but it looks dead and buried now....unless the Supreme Court can ride to the rescue - but given that this limitation decision was decided in accordance with the Supreme Court judgment ending the Nuclear Test Veterans litigation (another win for the cash strapped Treasury) this seems unlikely.  The Court was particularly effusive about the trial judge: Grenfell, the old DCJ of Leeds and W.Yorks:

I cannot part with this case without paying tribute to the judge. It is I hope apparent from what I have already said in my judgment that I regard Judge Grenfell's judgment as a tour de force. Not only has he deployed to good advantage his own great experience in the field but he has also given extremely conscientious consideration to the mass of evidence placed before him insofar as it bore both on the generic issues and on the case of each lead Claimant individually. His careful and exhaustive judgment has made our own task immeasurably easier than it might otherwise have been.

Another amazing tour de force on the same topic is Swift J's amazing 250 page judgment in the Phurnacite group action litigation - again the Treasury come out saving some money, although they go down on some expensive issues - no doubt it will all end up in the C of A.  Have liked Swift J (AKA Lady Oppenshaw, for they are a High Court spousal double act) ever since she assisted her old pupil mistress, Dame Janet Smith, as Counsel to the Shipman Inquiry - she has the northern silk quality which money can't buy.......

Monday 22 October 2012

Reduction in Magistrates Appointed

I see there has been a marked reduction in Magistrates appointed:

As at 1 April to 31 March each year: Magistrates appointed
2002-03 1,410
2003-04 1,768
2004-05 1,766
2005-06 2,212
2006-07 2,412
2007-08 1,899
2008-09 1,773
2009-10 1,632
2010-11 1,012
2011-12 736

It is important that we keep this institution alive and be alive to the creep of DJs (MC) and the reduction in the number of offences being deal with out of Court.  Magistrates may be slower and less efficient, but they represent a crucial lay element within the criminal justice system.  A lay element we lose at our peril.

Tuesday 16 October 2012

More on judicial blogging, the AG has been busy......and the Home Secretary has been openly defying our closest ally....

The Deputy Senior Presiding Judge (DSPJ) Gross LJ has given a speech to Magistrates.  He said this about judicial blogging:

Blogging: Given the element of controversy about the blogging Guidance, I hope it will be helpful to explain the underlying thinking. To my mind, the position here is plain. No one is obliged to be a Magistrate or any other Judge. As a private individual, one can blog to one’s heart’s content. But appointment as a member of the 
Judiciary involves restraint in a variety of areas – and blogging is one of them, as made clear in the recent Guidance. 
In the Declaration and Undertaking signed on appointment as a Magistrate the appointee acknowledges and undertakes: 
“that I will be circumspect in my conduct and maintain the dignity, standing and 
good reputation of the Magistracy at all times in my private, working and public 
life”  In my view, any Magistrate who wishes to blog must ask himself whether his blog 
complies with this Declaration and Undertaking. Comments on cases tried or on Govt 
policy or other branches of the Judiciary tend to demean rather than enhance the 
office holder in question. Likewise, as the MA has recently emphasised, the Guidance 
seeks to maintain “public confidence in the impartiality of the judiciary”; blogging 
contrary to the Guidance carries the very real risk of undermining that public 
confidence. I make no apologies for speaking bluntly on this topic.

This is all very interesting and I like people who speak bluntly.  But has Gross LJ read the guidance - the guidance does not permit blogging at all - "blogging contrary to the guidance" makes no sense when the guidance does not allow any blogging at all.  The guidance says "Blogging by members of the judiciary is not prohibited. However, officer (sic) holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary....The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered. "  So judicial blogging is not prohibited, but you must not identify yourself as a member of the judiciary - and also you cannot blog anonymously.....which leaves what exactly? Nothing!  This is a total ban on blogging by judges - whether they identify themselves as judges or blog anonymously.  

I utterly agree that judges must not blog in a way that demeans or undermines their office - but why can't they be trusted to blog in a way which does not affect their capacity to act as Judges? The guidance needs revisiting - see previous posts

Meanwhile the Attorney General (for England) has been very busy - he has decided to seek new inquests into the Hilsborough deaths - which must be the only option and has decided to veto the release of the Prince of Wales' correspondence with Ministers.  The Heir to the Throne will by definition (normally) become the Soverign and anything he says in letters to Ministers might undermind his future role as Soverign. The same essential constitutional ring of confidentiality which surrounds the Soverign must also surroung his or her heir.  The Upper Tribunal was wrong and the A-G  is right on this issue.  Will the Guardian JR his decision?

The Home Secretary has been openly defying US Attorneys over Gary McKinnon - but don't be fooled -   HMG would not take such a step without clearance from the White note that she does not actually propose any changes to our Extradition Treaty with the US.....


Monday 15 October 2012

Chief Coroner gets into his stride...

The Chief Coroner promised to sit, where possible, on all Coroners' appeals (thus implementing de facto one of the neglected reforms which is not to come into force) - and he is going great guns at present:

On the 11th he found (alongside Foskett J) that the Greater Manchester South Coroner was wrong leave death by dangerous/careless driving as a verdict to a jury. If a driver causes a death, it has to amount to manslaughter in order to be left to a jury as unlawful killing.  Case report here

They noted this, sagely, in passing:

We have reached the conclusion that we have for the reasons given and not for any wider policy reason. However, it has to be observed that, sadly, there are many deaths on the roads in England and Wales each year, all of which require an inquest to be held. The figures for England, Wales and Scotland were 2,222 such deaths in 2009 and 1,850 deaths in 2010. The prospect of hundreds of cases each year being considered, by a coroner or a jury, as potential cases of unlawful killing because of some possible careless driving is alarming, would involve a disproportionate amount of time and expense and would take into the inquest process something it is less well equipped to consider than either a criminal court or a civil court.

The CC was then out today (again with Foskett J) in order to quash the decision of the North West Kent Coroner to hold an article 2 Middleton inquest where it is alleged that Kent County Council could have done more to protect a minor, but where crucially it cannot be established that any failure caused his death.  Case report here.  They sagely noted the following, which Coroners have been saying ever since Middleton came out:

The extent to which the narrower form of inquest that will be required in the light of our decision would differ materially from a Middleton type inquest in this case is, perhaps, debateable. Mr Payne accepted in the course of argument that ultimately there may not be all that much difference in the scope of the inquest and which witnesses are called (albeit that he indicated that the focus of their evidence is likely to differ by reason of it being a Jamieson inquest). He conceded that, bearing in mind the coroner's Rule 43 responsibilities (which the coroner had referred to), the coroner would wish to hear evidence from the claimant local authority and other agencies.

All good stuff, which bodes well for a happy future where Coroners are properly supervised and brought to heal, when they go off-piste.

Thursday 11 October 2012

Should the Court of Appeal be legislating?

Jackson LJ recommended a 10% increase in general damages to compensate claimants for having to pay success fees when his reforms come into force in April 2013.  HMG agreed and said the Court would make the change necessary.  So the Court of Appeal highjacked an infant settlement in order to declare that the 10% increase will apply as from that date.  The Association of British Insurer spotted an obvious flaw, which was that the Court of Appeal did not say that it will apply only to those CFAs entered into after April 2013 where the success fee is irrecoverable from the Defendant.  In other words, for those old CFAs unaffected by the reforms, but where damages were agreed or assessed after April 2013, the insurer would have to pay both a 10% increase in generals and the success fee.  Insurers were not prepared to put up with that windfall, therefore they applied to re-open the Court of Appeal's 'judgment', which they successfully have done and the Court of Appeal has issued a new judgment which makes it clear that the 10% uplift only applies where the Claimant has to meet the success fee.  The new judgment is here.

One of the most startling aspects of this whole thing is that we make such big changes through the interesting legislative medium of some senior judges ram-raiding a private law action in order to make a declaration as to the common law.  Would any other system legislate in this way? The Court of Appeal has been the traditional guardian of general damages, but where wholesale reform is taking place, which includes legislation debated and passed in Parliament, why should one strand be left to be enacted in this bizarre way?  Perhaps given the horlicks the Court made of its legislative foray  it will leave such drafting to Parliamentary Counsel in future.  

Wednesday 10 October 2012

Lots going on....

HMG appears to have taken the interesting step of abolishing non-European Law based employment rights for those who are prepared to sell them to their employer for £2,000 (of shares in their employer).  Litigation will focus on whether the employee had a genuine choice as to whether to surrender their rights or not.

I asked before I went on holiday: What happened to Assange's bail sureties?  The Chief Magistrate has told us in ruling that they are all estreated in the following sums:

Tricia David £10,000

Caroline Evans £15,000
Joseph Farrell £3500
Sarah Harrison £3500
Phillip Knightley £15,000
Sarah Saunders £12,000
Vaughan Smith £12,000
John Sulston £15,000
Tracy Worcester £7500

McCombe J has waved the Mau Mau claims through to the next round following a limitation hearing.  HMG really ought to start stashing away some cash if Leigh Day and others are going to start trawling the former Empire for PI cases left behind after the Imperial flag was hauled down.  One can think of a few more fertile claims farming fields in the Commonwealth....

Meanwhile the Law Officers of the Kingdom are slugging it out in the Supreme Court over a constitutional crisis arising over some Welsh byelaws.  The question that everybody is asking - is Theodore wearing his new £5,000 insignia?

Sunday 7 October 2012

Imagine someone knocks you over the head...

and you make a criminal injuries compensation scheme claim in respect of your disabling brain injury.  The Criminal Injuries Compensation Authority (CICA) offers you quite a low amount of compensation.  You appeal with the help of solicitors to the First Tier Tribunal.  You obtain some interim payments from the Tribunal whilst you are waiting for the appeal to come on.  Your solicitor suggests that someone in their firm acts as your Deputy under the Mental Capacity Act in order to administer your interim payments.  You obtain a final award from the Tribunal.  The Tribunal has awarded you some compensation for your injury (according to a tariff), some loss of earnings and some money to cover some of the costs (but not all) of your Deputyship.  CICA pay the award to your solicitor who deducts over 1/2 in respect of your costs of appeal and a further 1/4 to pay for the Deputyship to administer your award, which now only amounts to the final 1/4 of your compensation.

The moral of the story - unless you can avoid it, don't use solicitors to appeal a CICA award unless they are prepared to do it pro bono or on a very low fixed fee or percentage.  Their fees will come out of the compensation.

Take out an Enduring Power of Attorney before you fall ill or appoint a family member as a Deputy (the Public Guardian or a Barrister instructed by the Bar Pro Bono Unit can help them).  Free Tribunal representation can be obtained from the Free Representation Unit.

Thursday 4 October 2012

London & SE get injection of new blood into District Bench

Welcome new District Judges to London and the SE Circuit.  I look forward to seeing you in Staines, Bow, Chelmsford, Southend, Hastings and Eastbourne in the near future...

03-10-2012 01:10 AM BST

The Queen has appointed Anthony John Edmund Rich to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned him to the South Eastern Circuit, based at Staines County Court with effect from Monday 22 October 2012. Notes to editors Anthony John Edmund Rich, 55, will be known as District Judge Rich. He was admitted as a Solicitor in 1981 and was appointed as a Deputy District Judge in 1999. ...
03-10-2012 01:10 AM BST

The Queen has appointed Richard Thomas Edward Clarke to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned him to the South Eastern Circuit, based at Bow County Court with effect from Friday 19 October 2012. Notes to editors Richard Thomas Edward Clarke, 44, will be known as District Judge Richard Clarke. He was admitted as a Solicitor in 1997 and was appointed as a Deputy District Judge in 2003. ...

03-10-2012 01:10 AM BST

The Queen has appointed Philippa Louise Roderick Smith to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned her to the South Eastern Circuit, based at Chelmsford County Court and Southend County Court with effect from Friday 19 October 2012. Notes to editors Philippa Louise Roderick Smith, 55, will be known as District Judge Philippa Smith. She was admitted as a Solicitor in 1985 and was appointed as a Deputy District Judge in 2004. ...

03-10-2012 01:10 AM BST

The Queen has appointed Helen Judith Lusty to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned her to the South Eastern Circuit, based at Hastings County Court and Eastbourne County Court with effect from Friday 19 October 2012. Notes to editors Helen Judith Lusty, 40, will be known as District Judge Lusty. She was admitted as a Solicitor in 1997 and was appointed as a Deputy District Judge in 2005. ...

Tuesday 2 October 2012

Lots of swearing (in) marks new legal year...

The new LC (Grayling), PSC (Neuberger) and MR (Dyson) were all sworn into office at the start of the new Legal Year yesterday.   There was also the usual service in the Abbey (and Red Mass in the Cathedral) and 'breakfast' in the Hall.
I see District Judges were invited to wear their little seen Star Trek robes.  Masters of the High Court wear something similar (save for the Senior Master who has a Tricorn hat etc) but with Pink tabs - I've never actually seen them in the Pink.

Wall P has announced his retirement as P of the Fam D and Morrit is going as Ch as Ch D.  So it will be all change at the top  - in addition to finding a replacement for Dyson in the SC.  Arden LJ is being tipped for both JSC and Ch - so she may have make a choice between the 2 jobs.  Black LJ might be elevated to P, although MacFarlane LJ may well be the favourite...