Letters to the Editor

RISKY BUSINESS

I refer to IP Chivers's letter about a case in which he had successfully argued for the reduction of a success fee to zero when the conditional fee agreement (CFA) post-dated an admission of liability (see [2002] Gazette, 3 October, 20).

While I congratulate him on his advocacy, I am dismayed that the court accepted his submissions that there was no risk to the claimant and his solicitor in this matter.

Firstly, an admission can always be withdrawn (subject to the court's permission).

Secondly, Mr Chivers refers to the part 36 risk but indicates this was dismissed as being a risk factor by the court.

I cannot comment on the precise submissions or the court's reasoning, but where a part 36 payment is not beaten then the solicitor goes unpaid for his time after the date of the payment (assuming the solicitor advised its refusal).

CFAs place a difficult burden on a solicitor in dealing with conflicts between the interests of the client and the solicitor, but if the solicitor cannot be rewarded by a success fee for running the risk of advising the rejection of a part 36 payment, the pressures on him to advise acceptance will be I fear too much to bear.

The part 36 risk to the solicitor is a real one and the courts must it seems to me recognise this.

The courts accept that following a denial of liability, a success fee of 100% is appropriate (see Callery v Gray (no.1), [2001] 1 WLR 2112, CA).

I suggest a success fee of less than 100% after a realistic payment in is impossible to justify save in the most unusual cases.

Owen Williams, Clarke Willmott & Clarke, Bristol

ADMISSION ISSUE

IP Chivers wrote that he reduced a success fee to zero by making 'a firm admission of liability'.

It does not seem that long ago to me that I heard of another solicitor obtaining the court's permission to withdraw an admission of liability and I think even withdraw a payment into court.

Therefore, it is evident that even a firm admission of liability cannot be accepted as reducing litigation risk to zero.

It may in fact reduce it to a minimal percentage but not, I believe, to zero.

It appears to me that defendants are seeking to have their cake and eat it, by being at liberty on the one hand to retract admissions but on the other claim that an admission should preclude the payment of a success fee.

In Mr Chivers's letter, reference is also made to a firm and irrevocable admission of liability.

In the light of the previous correspondence, I am left to ask whether there can be such a thing as an irrevocable admission given the court's power to permit the retraction of admissions.

Jonathan James, Lister Croft Partnership, Pudsey, Leeds

FIXING THE PROFESSION

Fixed fees would be more palatable to the profession if suppliers to the profession were subject to a similar regime.

What if accountants were bound by fixed fees for preparing solicitors' accounts reports as a precondition of the right to undertake such work? Or suppliers of training courses being restricted from charging above a fixed amount per course? What are the chances?

There are two hopes in this world: Bob Hope and no hope.

Robin Davis, KE Davis & Sons, Hayes, Middlesex

CALLING THE SHOTS

I was on call last weekend when the police telephoned me directly at about 00.50 hours.

I spoke to the sergeant who indicated that he would pass the case through to the duty solicitor call centre shortly.

I then spoke to the client.

To avoid a call from the call centre, I telephoned to let them know that I was already aware of the case and asked them not to phone me with the same information.

Needless to say, after ten minutes back in bed, the duty solicitor call centre telephoned me with the details of the case.

When I pointed out that they already knew about it, I was told that although I had told them of my prior knowledge, they had no means of recording that.

Pen? Paper? Common sense?

Is it any wonder that newly qualified solicitors have more sense than to do publicly funded defence work?

NV Wright, Pinders, Derby

FIGURING OUT LEASES

Remember everyone's surprise when they did not take commercial lease renewals out of the system post-Woolf?

I have worked out why.

The court fees provide, I suspect, a substantial proportion of the Lord Chancellor's Department's revenue.

In addition to this stealth tax on business tenants, all concerned are locked into an inappropriate strait-jacket that hampers negotiations and runs up lawyers' bills that are a complete waste of money.

Let us see the figures from the Lord Chancellor's Department to prove me wrong.

Philippa Dolan, Rochman Landau, London

ROCKY ROAD

The article by District Judge Julie Exton (see [2002] Gazette, 12 September, 40) drew attention to recent cases in which highway authorities were found not to be liable for traffic accidents.

Three of the cases concerned an absence of road signs warning of hazards.

They have been helpful in establishing that there is no duty on the part of the highway authority to erect warning signs of hazards ahead.

Even this is a generalisation and the highway authority would be liable if it failed to erect warning signs of temporary road works, such as resurfacing.

The fourth case concerned snow and ice on the highway and, as the district judge pointed out, the House of Lords declined to impose liability based on the vagaries of the weather.

None of these cases affect the duty of the highway authority to keep the surface of the highway in repair.

The cases on traffic signs have no bearing on the well-established principles under which highway authorities have been found liable for accidents caused by the dangerous condition of the surface of the highway.

Some examples, where liability has been established, are: the edges of the metalled carriageway breaking away; mud on the highway; obliteration of white lining leaving dangerous ridges in the surface; and, whatever the vagaries of the weather, allowing the highway to flood regularly owing to poor drainage.

Michael Orlik, Lodders, Stratford-upon-Avon

ON THE INSIDE

As a solicitor-advocate working in a busy criminal practice, I have had substantial difficulties in receiving full and proper payment of fees when acting as the advocate in the magistrates' court and a certificate for counsel has been granted.

In the past, there have also been difficulties in obtaining payment for the solicitor or clerk sitting behind me at court.

On an application to refer a point of principle of general importance, I have now received a letter from the Legal Services Commission policy and legal department, saying: 'The committee has found that this case does not raise a point of principle of general importance.

Instead, the committee considered that the guidance in the commission's criminal bills assessment manual should be amended to show that a solicitor can charge for his or her time sitting behind a solicitor- advocate, where the legal aid order has authorised the use of counsel in the magistrates' court; and to make it clear that it makes no difference whether the solicitor-advocate is from the same firm as the conducting solicitors unless the solicitor-advocate is preparing an opinion or advice rather than performing advocacy.'

I hope that this may be of assistance to other solicitor- advocates in the conduct of their case files when instructed by a fee-earner from within the same firm.

F Philip Kazantzis, Saunders & Co, London

YOU HAVE MAIL

I am not completely convinced by the comments regarding partners' right (and, possibly, duty) to open correspondence marked 'private and confidential', since they take no account of correspondence which may be personal (see [2002] Gazette, 19 September, 47).

Some personal (that is, non-client, non-business) letters may be marked 'private and confidential' because they are personal to the addressee, although I would agree that it would be helpful if all such communications were so marked.

Is the article saying that it does not matter that the communication may be a private one to a member of staff? Certainly, the Law Society rules do not appear to address this possibility.

The rules governing the right of employees to privacy at work - the Information Commissioner's codes of practice, and the Lawful Business Practice Regulations - do not appear to cover non-electronic personal communications, but I would have thought that at the very least the employer ought to warn staff that any personal communications received through the post at the firm's premises will be opened, if this is the case, whether or not marked 'personal' 'private' or 'confidential' or any combination, because they may be about the business of the firm.

Sue Cullen, data protection officer, Masons, London

ON A ROLL

The article on the Electronic Commerce (EC Directive) Regulations 2002, which came into force on 21 August 2002, says that most solicitors with Web sites and who use e-mail should add to the statutory information they provide such as stating that they are regulated by the Law Society, subject to its conduct rules and how those rules may be accessed (see [2002] Gazette, 3 October, 39).

One additional consideration is whether solicitors also have to give their roll number on such electronic media.

The regulations require that where one is 'registered in a trade or similar register available to the public, details of the register in which the service provider is entered and his registration number, or equivalent means of identification in that register' must be given.

Several IT lawyers have suggested to me this will include roll numbers, particularly given that the roll is available to the public, including on the Law Society's Web site.

There seems no end to the new e-commerce legislative measures emanating from the European Commission.

It is not long since distance-selling legislation came into force, also mentioned in the article.

Readers should also note the new directive on Privacy and Electronic Communications (Directive 2002/58), which must be implemented by 31 October 2003 and will also affect e-mail marketing.

Just as the Information Commissioner finalises the data protection code of practice part 3 'Monitoring at work: an employer's guide', the commission has begun consulting on possible legislation relating to the same subject - e-mail and Internet surveillance.

Such an abundance of riches makes one glad to be an e-commerce lawyer.

Susan Singleton, Singletons, Pinner, Middlesex