Letters to the editor

We need to fight back against HSBC over its conveyancing panel policy. Upon learning of its decision I emailed our business manager, who replied that it was just as big a shock to him as it was to me, since it was the first he had heard about it.

I am pleased to note the Law Society will terminate all association with the HSBC group. It may well be too little too late, but I have no doubt that it is a decision all solicitors who have any pride left in their profession will follow. Our individual balances will no doubt be relatively insignificant, but the withdrawal of all our joint balances in a short period will surely cause ripples. It will also serve as a warning to other institutions that may be considering treating our profession in such a contemptuous manner.
Refusing to sign LRID Forms is another tool we should not forget.

Surinder Singh, Manak Manak Solicitors, Orpington

Feeling in masochistic mood, I filed my tax return on a recent Sunday morning and applied online for the new SRA practising certificate in the afternoon.

Despite its shaky start, the online registration was fairly smooth. There were difficulties on the fee-earner page, which a number of people have encountered, as it did not clearly say to search for the name and then on the right click on that fee-earner to confirm their details. The system also wanted me to state when I ceased to hold client money, but I have never held it, so in order to progress I had to say I stopped holding it the day I started my practice. It took me over an hour to complete the form, which is longer than usual with the paper version. I am the only person in my firm.

The fee was less than last year. Let us hope reductions continue and cuts are made. I was disappointed that, at the end, the system would not let me pay by debit or credit card, although supposedly that is an option. I tried many times, but only a blank page which should have been WorldPay came up. So, unlike the paper system, I will have to return to the issue to pay an invoice shortly when one is available. One advantage of recent problems is that instead of paying in October, we have had a three-month delay in having to pay!

Page one had a disheartening ‘it's’ for ‘its’ and a page near the end contained a sentence which would not have been out of place in a list of examples of the worst use of prepositions; but overall it is not too bad.

Susan Singleton,Singletons, Pinner

The impression given by Masood Ahmed in his commentary on the 2011 case of Rolf v De Guerin (see [2012] Gazette, 19 January, 13) is that any small builder who attempts to resist an entirely unmeritorious claim by defending it in court rather than submitting to mediation will find himself penalised in costs.

This conclusion is overstated. Contrary to Mr Ahmed’s summary, the defendant in Rolf did not ‘win at trial’. Rix LJ, giving judgment in the Court of Appeal, held that ‘Mrs Rolf was the overall winner, but only just’, emerging with a (low) percentage of what she had claimed. More to the point, the claimant and the defendant had each conducted their respective cases in a topsy-turvy way; the claimant (who started as a litigant in person but was represented at trial) making successive amendments to her claims, the defendant (who started with representation but fought the trial in person) warding off most of them by a line of argument which he had not pleaded nor relied upon at any stage until giving evidence at trial.

The normal costs outcome in such flawed circumstances - where neither side has put in a substantive case which the judge could accept - would, I suggest, be for no order, so the appeal court’s decision to quash an award in the defendant’s favour was hardly novel. Rix LJ did go on in his judgment to review previous cases on mediation including Dunnett v Railtrack PLC and Halsey v Milton Keynes General NHS Trust, making weighty pronouncements on the virtues of ADR in the context of small buildings disputes, and dangling the threat of costs penalties for litigants who ignore them.

But bad cases make bad law. What about a case which has sound legal merits, is argued cogently from the start and succeeds wholly at trial? Is the successful proponent of that case to be penalised because he failed to respond positively to an invitation to mediate from an opponent whose case has no merit?

It may take a brave litigant to refuse ADR in the light of Rolf, but there is still, I believe, a place for robust insistence on trial rather than mediation, and for costs following the event.

Hugh Sullivan, litigation partner, RadcliffesLeBrasseur, London, SW1

The Gazette of 19 January contained two separate items that can be usefully linked: one a call to help the public, the other a warning of how such help can be turned against us.

Grania Langdon-Down’s article on the difficulties of managing civil litigation with an increasing number of litigants in person reports the suggestion of the Civil Justice Council that legal professionals ‘sell small amounts of their time or take on one or two defined pieces of work in the course of a case’.

When I started in practice nearly 40 years ago, I considered offering litigants in person exactly that. A drop-in service, open evenings and Saturday mornings, in a welcoming shopfront office stocked with all the court leaflets, ‘how to...’ guides and typing facilities - and with me on hand to give free 15-minute advice on how best to present their case. I was not doing it to get business - the cases would be low-value - but as a service to the community and to the court.

A perusal of the solicitors liability sections in Cordery on Solicitors convinced me that my offer of help would be abused. No matter how much one might stress to the litigant in person that one was offering only a well-intentioned guide to presentation of documents and witnesses, and general comments about procedure, even if one got them to sign a disclaimer accepting that limitation, it was all too likely that a losing litigant would claim that I should have advised them further and better, and that insurers and the courts would hold me liable.

Which is precisely what seems to have happened in Padden v Bevan Ashford, judging from the report of the case in the Court of Appeal. There is a distressed client; two local firms refuse to help; the client finally sees a newly qualified solicitor for 15 minutes’ free advice; the client is advised not to sign over her interest in the matrimonial home to her husband but does so nevertheless; the client sues the solicitor.

I do not make any comment on the correctness of the decision in that case, which has been remitted for retrial.

My point is a general one: that the law on solicitors’ liability tends to impose the same absolute standard of care, whether we are giving an anxious member of the public general off-the-cuff comments intended to explain and reassure, or advising a multinational on cutting-edge commercial work in consultation with a silk.

Until insurers and judges recognise that the two are very different, it is unsurprising if solicitors decline the invitation of the Civil Justice Council to offer ‘dip in, dip out’ help to litigants in person. Our advice would necessarily be limited; our liability might not.

John Baird, Southport

I have noticed in the past six months a markedly increased level of rejections being received from the Legal Services Commission in respect of claims for payment, for what can only be described as the most petty of reasons. These include, among many:

• a character in the LSC certificate number being misprinted on the claim 1 form, despite there being ample evidence with the supporting papers of the correct character, including the LSC certificate itself;
• counsel had not been paid their graduated fees, despite the fact that confirmation of payment of their fees was received the same day that the claim was rejected; and
• detailing all the work undertaken on page 7 of the claim 1, then limiting our costs on page 7 to reflect the cost limitation. The LSC required that we limit the actual work done on page 4, as merely limiting our costs was not sufficient.

However, the straw that broke the camel’s back was a rejection of a claim in excess of £5,000 on the basis that there was a 1p differential in what was paid to counsel and what was claimed on our claim 1.

This was quickly rectified following a rather strongly worded letter of complaint. The LSC has stated that it is not engaging in a campaign to reject as many claims as possible, but I wonder how many other legal aid providers are suffering the same unjustified delays?

Darren Isaacs, London Law Cost Consultants, Halstead, Essex

In discussing two recent bail decisions, Robin Tilbrook asks, rhetorically, whether racism is now worse than murder. The answer, of course, is that murder is worse, because the victim has no chance of recovery from the damage inflicted.
But why the need for comparison between two evils? The subliminal message, whether intended or not, is that society should not take racism too seriously. Mr Tilbrook even offers mitigation for the racist defendant - she was ‘perhaps intoxicated’ (would he regard that as mitigation for murder?).

Racism causes great distress to its victims and diminishes the perpetrator. History shows that it can easily lead to murder and, if allowed to take root in a society, to genocide and all manner of other abuse.

Any lawyer knows it is dangerous to comment on cases without knowing the full facts. I have no idea whether the bail decisions in question were justified. I don’t know all the facts. But nor, by his own admission, does Mr Tilbrook - he relies on press reports. He then compounds his error by using the cases for electioneering (he says that he intends to stand for election as the Essex law and order commissioner on a platform of replacing ‘politically correct social engineering’ with ‘good old-fashioned English common sense’ in the criminal justice system).

It is to be hoped that lawyers, at least, will reject such naked populism and aspire to a system of justice which condemns any form of seriously abusive behaviour, based on a rigorous examination of the facts.

David Thomas, solicitor, Chobham, Surrey

If Mr Pearlman wishes to be called ‘doctor’, I suggest he studies for a PhD or LLD - quite different animals from the solicitor’s vocational qualification.

Dr Julian Critchlow, Fenwick Elliott, London WC2

I cannot be the only practising solicitor who finds the various and vastly different money laundering requirements within the financial industry to be utter nonsense. In one particular estate, I am one of three executors. The other two are my senior partner and a long-standing client.

We have a grant of probate issued and sealed by the High Court. The deceased had a modest investment with Legal & General worth less than £2,000, which we are seeking to cash. To do so the three executors must sign a form and add their dates of birth, home address and time at that address. In addition, Legal & General requires identification from them in the form of a passport, bank statement, driving licence or utility bill; there is a two-page list. This is unacceptable.

Perhaps the Law Society might do me and my fellow practitioners a service and get together with the financial services industry with a view to stopping this waste of time, resource and money.

David Endicott, Spratt Endicott, Banbury

Geyve Walker claims to inhabit ‘the hard world of commerce’. When I became a solicitor, like Franklin Sinclair, it was into a profession and not a business that I stumbled. A professional person has a number of motivations, two of which are service and compassion.

John Alcock, Davis Blank Furniss, Manchester