Letters roundup

Leveson needs an accountant

The recent submissions by the Bar Council and Law Society to Lord Leveson’s independent review of the criminal justice system highlight the inefficiencies plaguing our courts. As the criminal justice system grapples with unprecedented challenges, the insights and recommendations from these bodies are helpful on procedure but light on data and statistics.

They advocate for the increased use of technology and more sitting days in court to reduce the backlog of cases, which has reached a record high of 73,000. Additionally, they suggest the greater use of diversionary measures, such as cautions and conditional cautions for low-level offenders, to prevent unnecessary cases from entering the system.

Both organisations call for an immediate uplift of 15% in legal aid rates and increased investment in the criminal justice system. They highlight the essential work and public service provided by the legal aid sector, often at great personal sacrifice, to keep the system afloat.

Neither the Bar Council nor the Law Society addresses the regulation or decriminalisation of cannabis production and consumption, despite its significant presence in criminal matters. This is notable, especially when compared to the American and German bar associations, which have taken clear stances on this issue. Unhelpfully, there is no Ministry of Justice data on how much cannabis cases affect the court backlog.

Both submissions fall short in providing detailed financial data in relation to trial costs and modelling. The Bar Council’s submission suggests that non-jury trials could take longer than jury trials, a point not supported by a comparison of data on costs from insurers that provide directors and officers legal expenses insurance. The submissions also disregard the high costs of discharged or hung juries.

While the submissions from both the Bar Council and Law Society offer sensible recommendations, they lack financial detail and statistical evidence to fully support their stances on whether intermediate courts should be considered. Perhaps Lord Leveson should instruct accountants or statisticians to provide a full analysis of court costs to inform future decisions?

Charles Kuhn

Partner, Clyde & Co, London

County court’s systemic failures

I read with interest your recent coverage of solicitors criticised for issuing in the High Court rather than the county court, and the judge’s comment: ‘I reject without hesitation the suggestion that compared to the Royal Courts of Justice the administration of a multi-track claim in the county court or a regional High Court centre (the staff and judges usually being the same) is “comparatively woeful”.’ 

I must respectfully disagree.

I recently acted for my daughter after a default judgment was entered against her without her knowledge. The judgment was settled promptly to avoid any risk of credit impairment, with the intention from the outset to apply to have it set aside under Civil Procedure Rule 13.3.

The Civil National Business Centre returned my N244 application three times, wrongly asserting that a satisfied judgment could not be set aside. Despite repeated efforts, their staff failed to grasp the basic procedural rights involved.

I was ultimately forced to issue a pre-action protocol letter for judicial review, supported by a draft claim. Only then did HMCTS escalate the matter for judicial review and the Ministry of Justice issued me with a grovelling apology. The MoJ admitted that staff ‘misinterpreted the case status and lacked the necessary legal understanding to assess the implications of a judgment being satisfied while still under dispute’. It confirmed that a directive had been issued to ‘reinforce the correct procedural approach and provide further guidance to prevent such misinterpretations in the future’, and the MoJ is now ‘reinforcing procedural responsibilities among administrative staff, ensuring that while they verify basic application requirements – such as case numbers, signatures, dates, and fee payments – any legal uncertainties must be escalated to a judge for proper consideration’.

While this is welcome, it does not undo the stress, delay and institutional inertia encountered along the way.

I suspect my experience is not unique. If judges wish to criticise those avoiding the county court, they should first look inward at the systemic failures that drive litigants elsewhere.

Richard Cohen

Solicitor, chairman, Epoq, London

Home truths

Jonathan Goldsmith provided a good summary of the problems for law firms that working from home has created. However, as someone who moved from partnership in a London law firm to in-house general counsel (just retired), there is another important factor to take into account: client confidentiality.  

While partners usually have comfortable and secure home arrangements, assistants may be in very different circumstances. For example, in a flat-share with others who can see their work, using common WiFi systems over which they have no security control, or using WiFi at Starbucks or similar locations with their laptops open for people to see. Some gyms have now set up WiFi workstations so that people ‘working from home’ but also using the gym can take a break and catch up with their office work.

My instructions included a standard billing letter with directions on how to present invoices, while since the pandemic also making clear that firms have a positive duty to ensure that working from home security is understood by employees, is good for each of them, and whether it is appropriate that my client information should leave their office for every issue in every case. All firms allowing working from home have a duty to their clients to do this.

By the way, client confidentiality is not just an issue for employees working from home. It also applies to partners when working away from home. How secure is the hotel WiFi, for example? I sometimes accidentally saw confidential information while flying, in the seats just in front of me. It did not concern my company but it once concerned my wife’s. For this reason, while travelling I strictly limited to generic information what documents or screen information I reviewed.  

I wish the best to everyone dealing with this difficult subject.

Frank Sanford

Geneva, Switzerland