Legal Aid Cuts

Posted on March 22, 2011 by Adam

Brave New (Legal) World? (6 March 2011)

Towards the end of 2008 the American housing bubble – one which had been at its peak for the previous two years – burst, causing the value of real estate and their connected securities to plummet and for the economic shockwave to roar around the world many times over. Three years later, Britain is still reeling from the aftereffects of the disaster; after national intervention in failing banking organisations, it now turns to making some of the biggest changes in the economy that this country has seen since the Thatcher era.

Most of us will have read or heard about it on the news: the already-struggling NHS risks being decimated and privatised, the sizeable scaling-back of the country’s armed forces (including the dismantling of ships and aircraft that have either been recently built or were in the process of being built), VAT is at an increased rate and this week we are (again) greeted by record-high fuel prices. What you may not be aware of is that another vital commodity is on the chopping block: our access to justice.

The Law Society Gazette first reported in November that the government intends to cut up to £350 million from the £2bn a year Legal Aid budget by removing certain areas of law from the legal aid scheme. Citizen’s Advice Bureaus up and down the country are to close, too.

The response has been one of outrage: JusticeForAll, a coalition of community groups, charities and legal and advice agencies, spoke out against the cuts: that these reforms have a detrimental effect on vulnerable people, an uncertain effect on future litigation proceedings, a negative effect on diversity and equality and a potential violation of the European Convention on Human Rights. The Law Society, which represents solicitors and is heading its ‘Sound Off for Justice Campaign’, also challenges the reforms, saying that other European countries in similar economic situations recognize the need for everyone to have this access.

Despite the resistance and the debating, the reforms appear to be going ahead. What this could mean is that with the exception of where liberty and life are genuinely at risk, court funding in areas involving employment, welfare benefits, debt matters, tort claims, criminal injury applications, housing and (perhaps most disturbingly) children and family matters will cease completely; a potentially devastating outcome for some of the poorest and most vulnerable members of society.

The reforms are bad news for solicitors too: in a survey conducted by the Law Society, nearly 50% of all firms which handle legally-aided work risk closure should the reforms come into effect. Small firms run now face the tough choice of either dropping their legal aid work altogether or face being taken over by large Tesco Law-type franchises (another recent legal development, causing an exponential growth in the Legal-Business sector).

In the middle of this debate, which shows little sign of simmering down, the question remains currently unanswered: where will I go to get my legal advice? With firms either bolstering their fees to weather the economic storm, shutting down their offices because they can no longer afford to give legal advice on a free / no-win no-fee basis or merging with faceless legal corporate bodies, people are now looking online for help.

The Internet has become a great (and often free) storehouse of human knowledge, but much of that ‘knowledge’ is misconceived, poorly arranged, non-country specific, or just wrong. Legal advice is no exception here; it is either ad hoc, general opinion or often given in a subjective light, which to the lay person can be daunting. Without the context or the guidance, we run the risk of not knowing what is the correct answer or the best course of action.

A popular belief is that if the website is presented professionally and the information matches their own views, it must surely be the right answer. This is a potentially dangerous belief, but with the inevitable legal reforms looming in the distance, there is an increasing need for online legal advice to be regulated and adapted to provide the right kind of advice to whoever needs it here and now.

Short of law firms going completely online, this problem may remain unanswered.

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10 Will Facts

Posted on March 22, 2011 by Simon

Everyone should make a Will to ensure the people we wish to inherit our estate actually do. Making a Will is something most of us would rather not think about, but inevitably we all need one.

One the lighter side, here are 10 Will facts from our @MakeMyWill twitter account:

  1. Philip Grundy left dental nurse Amelia White £181000 on condition that she didn’t go out with men.
  2. German poet, Heinrich Heine, left his entire estate to his wife, provided she did remarry.
  3. In Anthony Scot’s Will: ‘To my first wife Sue, whom I always promised to mention in my will. Hello Sue!’
  4. German countess by the name of Karlotta Liebenstein left her estate of £43 million to her pet dog.
  5. Harry Houdini requested in his will that his wife try to contact him by seance every Halloween.
  6. George Bernard Shaw’s Will gave his support to ‘Darwin’s millennial saga of creation’.
  7. Juan Potomachi left $50000 to the Teatro Dramatico Theatre as long as they used his skull in Hamlet.
  8. Alfred Nobel dynamite inventor bequeathed the Nobel Prize after reading his own premature obituary.
  9. Pianist Arthur Rubinstein remarked: It is practically impossible to leave anything for yourself!
  10. Janis Joplin left $2,500 to pay for a posthumous all-night party for 200 guests.
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Prenuptial Agreements in the UK

Posted on March 21, 2011 by Adam

PRE-NUP, UP AND AWAY

An examination of the recent news in Family Law of the Radmacher case, the Law Commission consultation and what it could possibly mean for today’s couples in the United Kingdom.

In November last year the Law Gazette reported on the Supreme Court’s decision in Radmacher v Granatino; after the collapse of her marriage it was ruled that German heiress Katrin Radmacher should keep the bulk of her £100 million after the ex-husband sought to claim a greater share. A majority decision was reached on the operability of pre-nuptial agreements.

To quote:  “The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties in their agreement”

In English, it means that when there is a pre-nuptial agreement in place, the courts will give it serious consideration unless it’s extremely unfair. This doesn’t sound like earth-shattering new until you realise that the driving concept of divorce law is that the divorcing couples should get a fair division of the ‘matrimonial property’.

English Family Law is currently being taught as one of the fairest laws in the Western World. Celebrities flock from overseas to get married (and divorced) because of the fairness of this system.

In (very) short: when trying to decide who gets what out of the divorce the Courts take into account not only who the breadwinner is, but rather the contributions of the parties to the marriage: the effort involved in the housewife’s (or househusband’s) raising of children and generally making the house a home isn’t necessarily quantifiable but is as valued as much as bringing home the bacon. The idea was that, after the divorce, the parties achieved a ‘clean break’ and are able to live the rest of their lives as comfortably as possible; whereas women usually got the raw deal before this.

Recently though, the Law Commission has discovered that sometimes even this concept of fairness isn’t all that fair. If a couple marry and one of them was to inherit a sizeable estate, family business, had property from a previous settlement (or was a Beatle and had millions from royalties, ahem) it could be said that it would be perceived as ‘matrimonial property’ and it would be split as fairly as possible for the reasons above: the business/property could be liquidated and the share of the money would go to the ex: a fair outcome for him/her, a lost family legacy for you.

Addressing this inequality, the government in 1998 produced a green paper which set out recommendations regarding pre-nuptial agreements: the courts still upheld the overriding notion of fairness, looking at each case objectively and trying to achieve a fair and balanced outcome for all parties involved, but the court’s attitude to pre-nuptial agreements had started to change. Thirteen years and a spate of pre-nup cases later, Radmacher is being seen as a harbinger of Family Law reform.

The Law Commission has recently been producing a consultation paper examining whether pre-nuptial agreements should be placed on a statutory footing. It goes on to consider to what limit agreements could operate (the best example is that of children: an agreement cannot prejudice their reasonable needs) and even what could be considered ‘non-matrimonial property’. Concerns about what may happen when there is a change of circumstances after the marriage may in future be dealt with a ‘sunset clause’, where the pre-nup would automatically terminate after an agreed number of years, or at a specific event such as the birth of a child.

While it is currently accepted as ‘rich-man’s law’ Professor Elizabeth Cooke, the commissioner leading the consultation, recognises the need for less wealthy couples to be protected also, and this consultation shall be led with their needs borne in mind.

The consultation paper will be published in 2012.

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Defamation on Facebook, Twitter and other social networks

Posted on March 21, 2011 by Adam

A Tweet too far? Be careful what you say online, you may regret it…

19 Jan 2011

A few nights ago I read an article about Courtney Love (celebrity rock musician) being embroiled in a defamation suit for something comments she posted on Twitter, the ever-popular digital method of stating your inner monologue online in no more than 140 characters. You have just read 190 characters, so you can imagine how brief the sentences must be.

According to the American Bar Association Journal, a social media expert has been called in to testify, in order to help the courts determine whether the tweets were expressions of opinion or statements of fact, but because the comments are so short it can be very tough to provide context.

Bryan Freedman, the lawyer who is suing Love (who acted in a similar case for gossip guru Perez Hilton), voices his concern that the line between nastiness and free speech is beginning to blur; his opinion is that ‘tweets’ should be protected from liability as long as they represent opinion.

In the UK, April 2010, Simon Singh came through the other side of a fierce libel battle brought about by the British Chiropractors Association; it involved a comment he made in the Guardian two years previously. The upshot of this was that Mr Singh spent nearly £200,000 in defending his case against the BCA.

It drew attention to the draconian nature of defamation law in the UK. In a nutshell: Claimants have to show that the material published is defamatory and that it is “reasonably understood” to refer to them…but they don’t have to show that the statement was false.

It is up to the Defendant to prove that the statement was true

Consequently, it gives companies and large bodies of people seemingly free-reign to litigate against anyone who disagreed or made statements to the contrary, with the onus on the little guy to defend himself in court: extremely costly and time-consuming.

UK defamation law is regarded as a “repressive and unfair” way for large companies to “essentially quash dissent and to destroy criticism”, and there have been many calls to reform it, but as of yet there has been no significant steps taken. US law, on the other hand, gives the people’s Freedom of Speech more impetus as it is grounded within the Constitution and directly influences Federal Law, in comparison to our less-than-direct influence from the European Convention on Human Rights.

So why worry about all this?

Most likely you will know someone who either uses online social networks themselves or knows someone who uses them. Facebook is one of the many pan-global ways of instantly communicating with all your friends and expressing opinions about anything, and are not necessarily limited to 140 characters. Believe it or not it is also alarmingly easy for strangers (in particular company representatives) to see your comments.  That, in conjunction with how seemingly easy it is for Companies to bring about defamation claims in this country, could spell disaster if you’re seen to be venting over their product/service. There have already been cases in the UK for defamatory Facebook comments but with Twitter comments now being the subject of Libel actions in the ‘States it makes you wonder: if people in the US (with their fairer defamation laws) can litigate over a handful of words, how easy will it be for someone over here to be sued over a glib comment on Facebook or other social networks?

21 March 2011 – UPDATE:

http://www.lawgazette.co.uk/news/courts-news/damages-awarded-first-uk-twitter-libel-action

…Called it!

And after repeated calls for reform:

http://www.lawgazette.co.uk/news/government-publishes-defamation-bill

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Welcome to the Berkson Wallace Law Blog

Posted on March 21, 2011 by Adam

Welcome to the Berkson Wallace Law Blog by Adam Pickavant.

News features and information from Berkson Wallace the Cheshire Solicitors on all aspects of the UK legal industry.

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