We are pleased to announce that the annual Manchester Legal Walk 2010 fundraiser, raising funds for Pro Bono work in the North West, will be held on Thursday 30th September this year.  More details will follow, but please mark this date in your diaries (and maybe start thinking about your teams)!

Manchester Monitor shows city performing better than last month, but downside risks remain

The Commission for the New Economy released its Manchester Monitor today, a monthly report on the state of the Greater Manchester economy. The Monitor reports that the city’s economic performance has improved from last month, but that risks remain for the economy.

Crucially, jobseeker queues have shortened this month to 77,213 – the first annual fall in claimants since May 2008 – and the number of job opportunities has increased by 43% on the year. Alongside this, the number of business mergers and acquisitions in Greater Manchester is showing some improvement, rising marginally to 14 deals in May.

The city centre is also performing well – retail turnover in the city centre has experienced a 7% annual increase, as opposed to a national decrease of 2%; footfall has also increased, rising by 9% year-on-year; and hotel occupancy has also risen over the year to 71% in April.

However, uncertainty still exists in the city. The Icelandic ash cloud affected airport performance, with Manchester Airport seeing a 14% fall in passenger numbers on the month. This compounds the effect of the recession, as passenger numbers were already down 7% on the year in the previous month.

House prices have also stayed relatively static. The average house price in Greater Manchester rose just £23 in April – alongside a rise of £27 the month before. Home sales have also shown an annual decrease, with the number of home sales dipping dramatically after the increase in stamp duty at the start of the year. Recent research shows that more houses are being put up for sale as a result of the withdrawal of Home Information Packs. However, this could continue to suppress average house prices, especially if the growth in sales is significant.

Baron Frankal, Director of Economic Strategy at New Economy, said:

“Indicators suggest the economy may be moving slowly out of recession. It is hard to tackle problems of pessimism and uncertainty in the market after such a prolonged recession, and Manchester is no exception. Cuts in the public sector will undoubtedly lead to job losses, but Manchester is better placed than most to weather this. Things may get worse before they get better, but Greater Manchester sees opportunity in this challenge.”

Solicitors who undertake work before employment tribunals on behalf of clients, where professional fees for all or part of any claim is covered by a Damages Based Agreement (DBA) should read this practice note.

1. Introduction

1.1 Who should read this practice note?

Solicitors who undertake work before employment tribunals on behalf of clients, where professional fees for all or part of any claim is covered by a Damages Based Agreement (DBA) (also known as a "contingency fee agreement").

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1.2 What is the issue?

On 9 April 2010 the Damages-Based Agreements Regulations 2010 (?the Regulations?) came into force governing the use of DBAs in employment tribunal work. If you use or intend to use a DBA in any employment tribunal matter you must comply with the Regulations which impose specific requirements on the content and limits of any agreement and stipulate the nature of the information that should be provided to your client/s.

The agreement will be unenforceable if you do not comply

The new duties are complemented by the existing duties set out in the Solicitors Code of Conduct, specifically Rule 2 - Client relations. You should be aware of both sources in drafting any DBA, and in advising your clients as to its effects.

This practice note advises on the relevant legislation, the content of the Regulations themselves and relevant rules and guidance already contained within the Solicitors Code of Conduct 2007, together with additional guidance to assist with compliance.

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2. Damages-based agreements (DBAs)

S154 Coroners and Justice Act 2009 (inserting s58AA Courts and Legal Services Act 1990) provides for the Lord Chancellor to make provisions with regard to the use and scope of DBAs in employment matters. A DBA is defined as:

"(a)...an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that -

(i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and

(ii) the amount of that payment is to be determined by reference to the amount of the financial benefit to be obtained;

(b) a damages based agreement relates to an employment matter if the matter in relation to which the services are provided is, or could become, the subject of proceedings before an employment tribunal."

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3 The Regulations

The Regulations:

apply to any person providing advocacy services, litigation services or claims management services in employment tribunal work.

prescribe the requirements with which an agreement between a client and his or her representative must comply. An agreement which does not comply with the provisions of the regulations will be unenforceable and you will not be able to sue clients for any fees that are owed.

came into force on 9 April 2010 and apply to all DBAs signed on or after that date concerning employment tribunal matters, whether proceedings are issued or not.

3.1 Regulation 2 - Requirements of an agreement

Regulation 2 stipulates that the terms and conditions of a DBA must specify:

"(a) the claim or proceedings or parts of them to which the agreement relates

(b) the circumstances in which the representative's payment, expenses and costs, or part of them, are payable; and

(c) the reason for settling the amount of the payment at the level agreed, including having regard to, where appropriate, whether the claim or proceedings is one of several similar claims or proceedings."

These points should be set out in the agreement or client care letter and you must ensure that they have been properly discussed with your client.

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3.2 Regulation 3 - Premiums

Regulation 3 stipulates the information you must provide to clients as

"(a) information, to be provided to the client in writing, about the matters in paragraph 3(2); and

(b) such further explanation, advice or other information about any of those matters as the client may request."

Those "matters" referred to above are contained in paragraph 3(2) of the Regulations and are as follows:

"(a) the circumstances in which the client may seek a review of the costs and expenses of the representative and the procedure for doing so;

(b) the dispute resolution service provided by the Advisory, Conciliation and Arbitration Service (ACAS) in regard to actual and potential claims.

(c) whether other methods of pursuing the claim or financing the proceedings, including ?

(i) advice under the Community Legal Service

(ii) legal expenses insurance

(iii) pro bono representation, or

(iv) trade union representation, are available, and, if so, how they apply to the client and the claim or proceedings in question.

(d) the point at which expenses become payable; and

(e) a reasonable estimate of the amount that is likely to be spent"

You should therefore:

provide your client with the prescribed information regarding the client's right to challenge your costs under Part III of the Solicitors Act 1974 (non-contentious costs)

discuss with your client other methods of funding which may be available to the client including any public funding and/or pro bono help. This would also include funding by a conditional fee agreement or on an hourly rate, depending on what would be in the client's best interest and on your willingness to undertake the case on that basis.

You must make it clear to your client what expenses and disbursements are likely to be incurred which are not included in your costs and when and in what circumstances those disbursements are payable.

You should record this information and include it in your client care letter.

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3.3 Regulation 4 - Additional causes of action

Regulation 4 states as follows:

"If you intend to make any amendment to a damages based agreement to cover any additional causes of action. Any such amendment/s must be in writing and signed by your client and you."

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3.4 Regulation 5 - The Payment

Importantly, the regulations now place a cap on the percentage of costs deductible from the amount recovered on behalf of the client in settlement of his/her claim, whether or not proceedings were issued or completed.

Regulation 5 states:

"The amount prescribed for the purposes of section 58AA(4)B of the Act is the amount which, including VAT, is equal to 35% of the sum ultimately recovered by the client in the claim or proceedings."

The cap of 35 per cent applies to the amount recovered by the client and not the award. Consequently, you will not be able to recover any costs from the client without first recovering all or part of the award from the unsuccessful opponent.

This figure need not include counsel's fees or other disbursements but if these are to be charged separately you must state this in the agreement. In this case, your bill should show separate amounts for your costs and VAT, the total of which must not exceed 35 per cent of the amount recovered for the client, and for disbursements. Where applicable, VAT should be shown separately in the usual way.

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3.5 Regulation 6 - Terms and Conditions of termination

Regulation 6 restricts the circumstances in which either you or your client may terminate a DBA.

It provides:

"(1) The additional requirements... ... ...are that that the terms and conditions of a damages-based agreement must be in accordance with paragraphs (2),(3) and (4).

(2) If the agreement is terminated, the representative may not charge the client more than the representative's costs and expenses for the work undertaken in respect of the client's claim or proceedings.

(3) The client may not terminate the agreement ?

(a) after settlement has been agreed; or

(b) within seven days before the start of a tribunal hearing

(4) The representative may not terminate the agreement and charge costs unlessthe client has behaved or is behaving unreasonably.

(5) The conditions on termination of a DBA do not prejudice the right of either party under the general law of contract to terminate the agreement."

You should ensure that the agreement provides full details of how your charges will be calculated and when those charges are to be paid if the client terminates the agreement. In practice, this is likely to be the relevant hourly rate for the work together with any disbursements.

The definition of "unreasonable" is likely to include circumstances in which a client refuses to accept an appropriate settlement, and requires you to act in a way which is contrary to the Code of Conduct. There are many other examples of 'unreasonable' behaviour and it may be appropriate for you to explain these to the client at the start of the case.

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4. Alternative funding arrangements

If you consider that the cap on the success fee for a DBA is unlikely to enable you to conduct the work in the client's best interests you are free to suggest alternative methods. For example, a conditional fee agreement is a further form of "no win no fee" agreement under which you may specify an hourly rate which is subject to uplift on success. Such an agreement is not covered by these regulations because it is not related to the amount of damages recovered.

4.1 Non-contentious business

Tribunal proceedings are non-contentious business under the Solicitors Act 1974 ("the Solicitors Act") and, so far as solicitors are concerned, a non-contentious business agreement compliant with Section 57(1) of the Solicitors Act could be used for Employment Tribunal matters.

A conditional fee agreement (as opposed to a DBA) would be enforceable and would not be caught by the Regulations. Such an arrangement might enable you to achieve a greater success fee than would be possible under the Regulations, and still avoid your client risking liability to you if the claim fails.

You should be aware, however, that a conditional fee agreement may amount to a DBA for the purposes of the Act where the amount of the costs and/or of any success fee payable under the agreement is to be determined by reference to the amount of any financial award obtained. This would be the case if a conditional fee agreement provided for different levels of success fee dependent on the size of the financial award or capped the costs and/or success fee by reference to the level of that award.

Such agreements will be caught by the new regulations and failure to comply will mean they are unenforceable.

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4.2 Complying with the Code of Conduct

Rule 2 of the Code of Conduct is important., along with its accompanying guidance on information for clients, costs information and termination of a retainer. See section 5.1 for details.

In entering into such an agreement you must ensure that you comply with your duties under Rule 2.

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5. More information

5.1 Professional Conduct

The following sections of the Solicitors' Code of Conduct 2007 are relevant to this issue:

Rule 2: Client Relations:

Rule 2.01 - Taking clients on

Rule 2.02 - Client Care

Rule 2.03 - Information about the costs

Rule 2.04 - Contingency fees

Guidance to Rule 2 - Client Relations

5.2 Further products and support

5.2.1 Practice Advice Line

The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09.00 to 17.00 on weekdays.

5.3 Status of this note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

5.4 Terminology in this advice

Must - a specific requirement in the code or legislation. You must comply, unless there are specific exemptions or defences provided for in the code or relevant legislation.

Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.

May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.

5.5 Acknowledgements

Law Society Civil Justice Committee

Law Society Employment Law Committee

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Damages-based agreement Regulations - 27 May 2010

Thursday 27^th May 2010 is publication day for Lord Lester of Herne Hill QC's Private Member's Defamation Bill to reform libel law.

Libel law is complex, costly and out of date. There is a pressing need for a balanced framework, protecting both the right to reputation and the right to free expression, and taking account of the realities of 21^st century publication. 

The Bill is designed to:

• Introduce a statutory defence of responsible publication on a matter of public interest;
• Clarify the defences of justification and fair comment, renamed as ‘truth' and ‘honest opinion';
• Respond to the problems of the internet age, including multiple publications and the responsibility of Internet Service Providers and hosters;
• Protect those reporting on proceedings in Parliament and other issues of public concern;
• Require claimants to show substantial harm, and corporate bodies to show financial loss;
• Encourage the speedy settlement of disputes without recourse to costly litigation.

The Bill seeks to reduce the chilling effect on freedom of expression and recourse to self-censorship that results from the vagueness and uncertainty of the present law. It also aims to encourage the free exchange of ideas and information, whilst providing an effective and proportionate remedy to anyone whose reputation is unfairly damaged.

Anthony Lester said:

"The time is over-ripe for Parliament to replace our patched-up archaic law with one that gives stronger protection to freedom of speech. No Government or Parliament has conducted a thorough and comprehensive review. My Bill provides the opportunity to do so and to modernise the law in step with the technological revolution. It creates a framework of principles rather than a rigid and inflexible code, and it seeks a fair balance between reputation and public information on matters of public interest."

Lord Pannick QC, cross-bench peer and leading human rights barrister said:

"Lord Lester's Bill will remedy many of the legal deficiencies that have made London the libel capital of the world and severely damaged freedom of expression."

Robert Dougans, Solicitor-Advocate for Simon Singh in his recent case against the British Chiropractic Association said:

"Lord Lester's Bill should be welcomed by free speech campaigners. The proposals follow on from the Singh decision in expanding and enhancing the defence of honest opinion. This ought to be good news for all those seeking to engage in hard-hitting debate.

The most important legacy might simply be putting much of libel law on a statutory basis. Attempts by the courts and Parliament to reform the libel laws have just added layers of complexity, to the extent that only specialist lawyers are able to advise upon it. This naturally increases costs and makes it harder to give definite advice."

PRACTICE NOTE 

LOW VELOCITY IMPACT ROAD TRAFFIC CLAIMS

This Practice Note replaces the Practice Note issued by McCombe J on 14 March 2006 (as subsequently amended)

Notwithstanding the observations of Brooke LJ in Kearsley v Klarfeld [2005] EWCA Civ 1510, it has not been possible to identify suitable test cases, but there is a continuing need to maintain consistency of case management in these claims.

Accordingly, Irwin and Ryder JJ, as Presiding Judges on the Northern Circuit, with the concurrence of Moore-Bick LJ (as Deputy Head of Civil Justice), have directed that on the Northern Circuit, where in any of these claims there are applications to adduce expert evidence of an engineering and/or medical nature on the issue of whether the alleged injury to the claimant has been suffered or for such evidence to be given orally at trial (or any similar question), such applications should be listed before the relevant Designated Civil Judge, or one of the judges specified in the next paragraph.

At Manchester, His Honour Judge Platts, District Judge Gosnell, District Judge Smith

At Liverpool, District Judge Henthorn

At Birkenhead, District Judge Travers

Dated: 1st JUNE 2010

HOMELESS WOMEN ARE TO RECEIVE EXTRA SUPPORT

Homeless women in Manchester are going to get all the support they can get this summer with a new campaign called Bosom Buddies. Lucile Lingerie has teamed up with Manchester based charity Mustard Tree to try and encourage women to donate their unwanted bras.

A recent survey (One Poll, March 2010) has shown that on average British women own 13 bras but only wear 8 of them. That makes about 124 million bras in total that are collecting dust in drawers at home.

When Lucile discovered this survey they contacted Mustard Tree to create a campaign that would help homeless women in Manchester. Boutique owner Camilla Blois said "We believe every woman is entitled to have a good fitting bra and we wanted to offer this to women who are less fortunate and put something back into the community. If any lady out there owns bras which they don't wear, we are asking them to kindly pop into the boutique and donate them for the less fortunate out there."

Bosom Buddies 2010 has a target of 1000 bras which can be donated at Lucile Lingerie (Police Street, Manchester) and Mustard Tree (110 Oldham Road, Manchester). Paul Wenham, General Manager at the Mustard Tree charity comments: "Women who find themselves homeless and sleeping rough are incredibly vulnerable and have often been through extremely difficult circumstances.  Although decent underwear is a very small part of the help needed, this can still make a huge difference between feeling like a worthless object or a lady with some dignity.'

The campaign has also been backed by the Church of England, Rev Jan Harney commented on the summer campaign, "Whether your spare bras are ‘itsy-bitsy-teeny-weeny' or more of the ‘over-shoulder-boulder-holder' style, a sister out there will be blessed by them".

For every bra donated in-store, ladies can save £10 off any new bra from Lucile Lingerie Boutique.

For more information about the campaign, please visit: www.bosombuddies2010.co.uk or www.mustardtree.co.uk or ring Lucile Lingerie on 0161 835 3286

MoJ unveils new ministers' portfolios

Friday 21 May 2010 by Catherine Baksi

The Ministry of Justice has announced the roles of its new ministerial team overseen by justice secretary Kenneth Clarke, with the legal aid brief handed to former City lawyer Jonathan Djanogly.

Tom McNally, minister of state and deputy leader of the House of Lords, will have responsibility for civil liberties; freedom of information and data protection; legislation and law reform; public law and public legal issues; Crown dependencies; the Land Registry; national archives; and the Law Commission; as well as overseeing the department's business in the House of Lords.

Police minister Nick Herbert will be responsible for criminal justice strategy. He will report on this jointly to the home secretary as well as to Clarke.

Parliamentary under-secretary of state Crispin Blunt's portfolio will be prisons and probation; youth justice; criminal law and sentencing policy; and criminal justice.

Parliamentary under-secretary of state Jonathan Djanogly, a former partner at SJ Berwin, has been handed legal aid and legal services; the courts and tribunals services; the office of the public guardian; offices of courts funds, the official solicitor and the public trustee; civil law and justice; family justice; coroner reform and burial policy; Criminal Cases Review Commission; Criminal Injuries Compensation Authority; and the parole board.

Clarke said: ‘We face a set of formidable challenges. We must ensure fairness and efficiency in our justice system, while reinforcing an independent judiciary.

‘We must provide protection for the public from dangerous individuals and find ways to improve rehabilitation so to cut the worryingly high rates of recidivism. We must deliver these priorities against the backdrop of greater budget constraint than has been seen for many decades.

‘I do not underestimate the scale of the task, but my team and I are ready to get to work, improving the justice system and delivering better value for the taxpayer,' said Clarke.

Law Society insists on home buying reform in wake of HIPs axe

The Government's decision to abolish HIPs can only improve the consumer experience in home buying and selling, the Law Society announced today.

Reacting to the news that the coalition government has suspended the use of Home Information Packs (HIPs) with immediate effect, the Law Society said reform of the home buying process is essential to meet the real needs of the home buying market.

HIPs were introduced in 2007 in England and Wales with the aim of speeding up the house selling process by obliging sellers to provide much of the required conveyancing information when properties are first put up for sale.

The Law Society has consistently opposed the compulsory nature of HIPs, arguing that the packs failed to resolve a number of key issues for home buyers. Instead of providing the essential information consumers needed, HIPs were regularly prepared by individuals who lacked professional training or professional responsibility and ultimately became part of the marketing of a property rather than providing essential data that a full investigation should produce to ensure that the property would satisfy buyers and lenders.

"Relentless uncertainty in the housing market, coupled with the excessive costs to the consumer, has made the abandonment of Home Information Packs [HIPs] the only sensible option", said Law Society President, Robert Heslett

The Law Society President explained: "The Society has regularly argued that HIPs have led to increased costs and a host of cross-selling initiatives that were not in the consumer's interests.  The advent of HIPs encouraged estate agents and HIP providers to vie with eachother to gain the initial access to the consumer so that they could be referred, for a fee, to other professionals and service providers which distorted the market. These fees were not transparent to the consumer. Having written to Grant Shapps MP, Minister of State for Housing, on May 14th, to ask for HIPs to be abolished, I am extremely pleased with this outcome."

The Law Society has always supported the idea of buyers receiving information about a property they wish to buy up front. The Society wants to develop innovative solutions to properly address some of the issues that HIPs have not resolved. It is working to develop and improve its protocols with a view to improving efficiency, value and transparency.

Concern about the additional cost to sellers and lack of benefit to consumers has prompted the Law Society to propose a complete and comprehensive set of documents, prepared by a solicitor, who has the benefit of specialist legal training and professional responsibility. The Society is recommending that the information be provided in a standard format to bring proper value to consumers and improvements in the process whilst at the same time reducing cost.  The Society's approach is designed to support consumers and improve the process by providing practical and innovative support to provide a better experience for all those involved in the home buying process.

Robert Heslett added, "The professional integrity and legal skills which solicitors have traditionally brought to the housing market are probably more important now than they have ever been. The marked increase in property fraud, including registration fraud and mortgage fraud, means that the role of the solicitors as the gatekeeper in the process assumes a greater importance .This role falls to solicitors as the most highly regulated professionals in the process. Solicitors can help consumers understand the residential conveyancing process, the role of the solicitor and others in the buying and selling market and to make informed choices."

Manchester Metropolitan University, School of Law are offering a legal internship scheme with a difference.  To see more information click here

Employment Solicitors please note following information re use of the online facility for presenting an ET1 or ET3.

It appears that there is no longer a facility for saving online a draft of the ET1 or ET3. However, a draft could be saved to a user’s own PC and the final version emailed to the Tribunal.

Brian Doyle, Regional Employment Judge

Revised guideline rates have been approved nationally with effect from 1 April 2010. 

The classification of the 4 grades of fee earner remains unchanged. 

Grade A:         Solicitors with over 8 years post qualification experience with at least 8 years litigation experience 

Grade B:         Solicitors and legal executives with over 4 years post qualification experience including at least 4 years litigation experience 

Grade C:         Other solicitors and legal executives and fee earners of equivalent experience 

Grade D:         Trainee solicitors, paralegals and fee earners of equivalent experience 

“Legal executive” means a fellow of the Institute of Legal Executives 

The guidelines are again in Bands. Manchester is in National One.

The other courts in the Manchester Group are in National Two. 

The guideline hourly rates are: 

                        Band One                    Band Two 

Grade A          £217                            £201 

Grade B:         £192                            £177 

Grade C:         £161                            £146 

Grade D:         £118                            £111 

These figures continue to be guidelines only. Higher or lower figures may be allowed,

depending on the circumstances. Subject to the discretion of the judge, a solicitor conducting a case in Manchester but practising within the jurisdiction of another court within the Group will normally be expected to use Band Two. Regard will also be had to the appropriate grade of fee earner for the work involved, irrespective of whether the person who has undertaken the work falls into that grade.