Letters to the Editor

MEASURING SUCCESS

I read with interest that Tom Wainwright of Glaisyers was 'outraged' by a recent decision to award a 5% success fee (see [2002] Gazette, 26 September, 5).

It is fortunate for him that he was not against me in a recent case at Middlesbrough County Court, where I achieved a reduction in the success fee from 65% to zero.

In that case, the conditional fee agreement (CFA) had been executed nearly 12 months after a firm admission of liability from my insurer clients.

It was argued, on behalf of the claimant that even where liability is admitted, the claimant still suffers a risk of failing to beat a part 36 offer.

My counter-argument, accepted by the district judge, was that the failure to beat a part 36 offer did not go to the question of success or failure for the purposes of the CFA, but was an eventuality covered by the claimant's after- the-event insurance.

Success, for the purpose of the CFA, is established probably by a firm and irrevocable admission of liability or, at the latest, by a defence admitting liability or interlocutory judgment.

The judge described the attempt by the solicitors to obtain a success fee in circumstances where there had been an early admission of liability as 'pure greed'.

Perhaps Mr Wainwright's 5% was not so bad after all.

IP Chivers, Castle Law Costing, Dover, Kent

RETRIEVAL FAILURE

Businesses and individuals live using electronic means.

What is surprising, though, is how many British law firms still seem to rely solely on paper-based evidence in cases of civil litigation.

Although some might argue that they scan paper documents into their IT systems, this certainly is not the most efficient use of technology.

In 1999, 93% of all documents created in the US were created electronically - a number we can only presume has increased.

Statistics exist that indicate 70% of electronically created data never migrates to paper.

With many legal cases riding on written evidence, surely those firms that can search through more documents in the time available can only increase the strength of their argument.

UK lawyers seem to be overlooking retrieval of electronic documents - unlike their US counterparts, who treat these documents as vital elements of a discovery process.

The very fact that these documents are electronic allows the lawyer not only to manage and manipulate huge volumes of information, but also to find and review the relevant documents far more quickly and cost-effectively than paper-based ones.

In conducting legal battles more efficiently, and avoiding the need to look through mountains of irrelevant documents, lawyers can surely take on more cases - and achieve a higher degree of success based on the larger amount of relevant evidence collated.

Not to mention the costs they would save their clients through more efficient document processing.

Lawyers are renowned for being accurate and thorough.

Ignoring electronic evidence is equivalent to reviewing only three out of ten drawers in a filing cabinet.

Hardly the comprehensive approach you would expect from someone fighting your case.

Todd Johnson, general manager, Kroll Ontrack

E-MAIL CHECKS

Your correspondent Ramnik Shah (see [2002] Gazette, 19 September, 17) supports Alexander Forbes' risk management advice on e-mails but criticises the implied recommendation for two people to check them.

Opinions may differ on what controls a firm should have, and risk management can never eliminate all risk, but the article has achieved its objective of making people think about the issue.

The majority of correspondence and paper documents probably will have been seen by two people - a secretary and a fee-earner.

By contrast, e-mails are inherently less likely to go through a two- stage process.

So it is not necessarily a case of having every e-mail checked, but encouraging partners and staff to 'think risk' by asking themselves in any particular case whether it would be wise to have an e-mail checked before sending, particularly if it is one containing substantive advice.

Solicitors are required by rule 13 of the Solicitors Practice Rules 1990 to manage and supervise their staff.

Law Society guidance on e-mail use encourages firms to ensure good practice management by adopting an e-mail policy.

Our experience of advising solicitors on risk management issues suggests that little attention is yet being paid to e-mail risk in many firms, yet they have already caused at least one substantial claim.

Frank Maher, head of professional indemnity, Weightman Vizards, Liverpool

SINK OR SWIM

Liz Holdsworth's frustration (see [2002] Gazette, 12 September, 17) with the Public Guardianship Office (PGO) is, from my recent experience, understandable.

Nevertheless, there is a danger of throwing out the baby with the bathwater.

Although enduring powers of attorney are certainly helpful, they are only suitable for some people in some circumstances - and can also present problems.

For example, the Master of the Court of Protection reported in September 1998 that financial abuse occurs in 10-15% cases with registered powers, and even more often with unregistered powers.

The PGO and the Court of Protection could and should provide a useful and valuable service.

There is no reason at all why a public office providing control over a system of receivership could not be efficiently and productively run.

What is truly scandalous is that successive governments have failed to provide proper resources for this service, despite the fact that governments have been well aware for decades that the numbers and proportion of elderly people in the population is set to increase substantially.

It is as if elderly people and their families have been left to sink or swim.

Robin Haig, Hunter Rawsthorn Solicitors, Wilmslow, Cheshire

ROCKY LEGAL ROAD

Trevor Kent's letter on rights of access to land may have painted an unnecessarily pessimistic picture (see [2002] Gazette, 12 September, 16).

It only became an offence to drive a motor vehicle over common land on 1 January 1926.

A right of way could have been lawfully obtained by prescription through use for more than 20 years before that date.

Mr Kent says that his home has been in the family since 1919.

If he was not the first owner and the house was built around 1900 or before, the property enjoys a prescriptive right of way.

It also does not follow that drives over verges and lay-bys can be ransomed.

Common and waste land of the manor is not exempt from the ordinary rules of highway dedication.

There are reported cases where the Highway Authority has been successful in actions against the lord of the manor in claiming that land close to the metalled carriageway has become dedicated as part of the highway after a long period of uninterrupted use by the public.

Michael Orlik, consultant, Lodders Solicitors, Stratford-upon-Avon, Warwickshire

OPEN DOOR POLICY

I note with some trepidation the article regarding advice from the Law Society's conveyancing and land law committee on additional preliminary enquiries concerning replacement windows and doors (see [2002] Gazette, 23).

Since the hiatus and near paranoia that has swept the profession following the decision of Cottingham v Attey Bower & Jones it concerns me that conveyancers are being swept along by a tide which in my view has nothing to do with our role as lawyers, and particularly when our profitability margins are increasingly under attack.

As lawyers, we have no particular expertise concerning the fabric of properties.

Are not these functions more properly in the domain of the surveying profession?

John Blake, Flint Bishop & Barnett, Matlock, Derbyshire

WAR OF THE WORDS

As with your correspondent Robert Venables (see [2002] Gazette, 26 September, 20), I was amused by the district judge's article, but for a different reason.

I note that the article explaining the meanings of the long-established phrases occupied a whole page of the Gazette, whereas a simple list of them would have occupied no more than three quarters of a single column.

It is thus with a wry smile that I note the judge's exhortation not to use the Latin.

Presumably, when those appearing before him in the future are accused of verbosity as they struggle to refrain from using the established phrases, production of the article will be considered an adequate authority.

Jamie Champkin, sole principal, Stratford-upon-Avon, Warwickshire

STANDARD COST?

I read that the public defender service handled 1,709 matters in its first year with running costs of 1.5 million - that is to say, 877 per case (see [2002] 5 September, 1).

Should this therefore be the bench mark for standard fees in criminal cases? I am not holding my breath.

Steven Baggott, Mason, Baggott & Garton, Brigg, Lincolnshire