With the myriad of domestic challenges facing the profession at the moment – from economic downturn to the potential impact of the legal aid reforms and the regulatory challenges flowing from the Legal Services Act, it is good to see that the Law Society has not closed its eyes to global issues.The Society’s International Human Rights (IHR) Committee last week called on the US and the Iraqi government to intervene to protect Iranian refugees living in Iraq. The plea followed a reported attack by Iraqi forces on Camp Ashraf, which is home to 3,500 Iranian refugees. The attack reportedly left 13 people dead and more than 400 injured. Until January 2009, the security of the camp and the safety of its residents were guaranteed by coalition forces in Iraq. Those duties were transferred to Iraqi forces following assurances given by the Iraqi authorities that the refugees would be treated humanly and their rights under international law respected. The residents of the camp are ‘protected persons’ under the Fourth Geneva Convention, which gives them the right not to be forcibly displaced, deported, expelled or repatriated in violation of the principle of non-refoulement. Malcolm Fowler, an IHR committee member, said: ‘We are calling on Iraqi forces to immediately cease the use of all violence against the residents of the camp. These forces must also allow the International Committee of the Red Cross, relevant United Nations bodies, lawyers and the press into Camp Ashraf.’ Amnesty International claims to have seen video footage of Iraqi forces beating people and firing on them. Cynics may say that the committee’s criticism is unlikely to have any impact on what the Americans or the Iraqis do, so what is the point. Indeed, some years ago there was a move to disband the IHR committee by some who felt Chancery Lane’s function was only to look after the interests of its members. But surely as we live in a global community, lawyers have a duty to speak out against injustice and to seek to uphold the rule of law across the globe. To anyone who would seek to deride the committee’s work, I remind them of the words of 18th century Irish statesman and philosopher, Edmund Burke: ‘All that is necessary for evil to triumph is for good men to do nothing.’
Two former City lawyers charged with eight counts of insider dealing by the Financial Services Authority have been committed to stand trial at Southwark Crown Court. Andrew Rimmington, former partner at US firm Dorsey & Whitney, and Michael McFall, former partner at US firm McDermott Will & Emery, were committed for trial after a contested hearing at Westminster Magistrates’ Court last week. They were granted unconditional bail ahead of a plea and case management hearing on 28 October. Both Rimmington and McFall previously worked in the London offices of their firms. The charges relate to the takeover of UK pharmaceutical company Neutec Pharma by Swiss pharmaceutical company Novartis in 2006. The case is the FSA’s fifth insider-dealing criminal prosecution in the past 18 months. The FSA secured its first insider-dealing convictions in March. Christopher McQuoid, former general counsel at TTP Communications, was jailed for eight months. His father-in-law, James Melbourne, was given an eight-month suspended sentence. McQuoid’s appeal against his sentence was dismissed last week.
Wind of change: City firm LG advised wind turbine manufacturer Clipper Windpower on a $206m (£128m) investment in the company and $64m (£40m) cash offer to shareholders by industrial technology company United Technologies Corporation. Linklaters advised UTC. Raising a glass: US firm Shearman & Sterling advised glass container manufacturer Ardagh Glass Finance on a €180m (£157m) bond offering. Winter’s lease: US firm Mayer Brown advised financial trading and software company CMC Markets on the lease of a 54,000 square foot office at 133 Houndsditch, London, from property investors Henderson Global Investors, advised by US firm K&L Gates. Class act: US firm Weil Gotshal & Manges advised Canadian pension fund Ontario Teachers Pension Plan Board on acquiring Acorn Care and Education, which provides UK special needs schools. City firm Travers Smith advised Acorn’s shareholders, while City firm Nabarro advised its management. Tiger feat: Magic circle firm Clifford Chance advised Citigroup, Morgan Stanley and DBS on a $178m (£110m) flotation by Tiger Airways in Singapore, advised by US firm Latham & Watkins. Rights move: Magic circle firm Linklaters advised financial group UniCredit on a €4bn (£3.49bn) rights issue. US firm Shearman & Sterling advised Bank of America Merrill Lynch and UniCredit Bank as global coordinators and bookrunners, and a consortium of other banks as bookrunners and co-lead managers. Under the hammer: US firm Jones Day advised a syndicate of banks on West Ham United football club’s sale to businessmen David Sullivan and David Gold for around £105m. CB Holding, a special purpose vehicle which previously owned the club, was advised by magic circle firm Freshfields Bruckhaus Deringer. National firm DLA Piper advised Sullivan.
Join our LinkedIn Legal Aid sub-group Consultant David Gilmore, who carried out the research, said: ‘One cabinet minister told me that he was opposed to the reforms but could not go on the record because of collective responsibility. ‘I was also told that a senior Conservative backbencher had been actively campaigning against the proposals behind the scenes.’ Members of parliament have voiced opposition to the government’s proposed legal aid cuts, and warned that the cuts could lead to the closure of many legal advice centres. Fifty-one MPs responded to a survey conducted by consultancy DG Legal for campaign group Justice for All, including 33 Labour MPs and 18 anonymous respondents understood to be MPs belonging to the coalition parties. Nine out of ten respondents said they did not agree with the government’s proposal to end almost all public funding for social welfare law and immigration, and 82% said the reforms could lead to the closure of many citizens advice bureaux, law centres and other advice agencies. Some 88% of MPs expected the reforms to substantially increase their workload.
The fallout from the trial of Milly Dowler’s murderer has proved discomfiting for defence lawyers. Defence barrister Jeffrey Samuels QC has been vilified in the press for his questioning of Milly’s father and has apparently been sent threatening emails. The High Court judge who presided over the trial has faced criticism for failing to curtail the questioning. Leading criminal defence barrister Lady Kennedy, meanwhile, is among those to wonder out loud whether the judge should have exercised tighter control. The trial process itself has also been attacked, for focusing on the rights of the defendant and allowing the family of the victim to be treated ‘like criminals’. Sections of the media, victims’ rights campaigners and politicians have all called for changes in the law to reform the trial process to protect victims and witnesses. The loss and pain of the Dowler family is unimaginable and it goes without saying that they have the deepest sympathy of all commentators. But the furore over this trial brought to mind something one of my old university law lecturers said –‘hard cases make bad law’. Tragic as this case is, it should not have the effect of changing the law and diminishing the robustness of the trial process. It must be remembered that there was no forensic evidence linking Bellfield to Milly’s murder; and that during the police investigation evidence was uncovered to suggest that Milly was unhappy and may therefore have run away from home. In addition, Mr Dowler initially lied to the police about his whereabouts on the day his daughter went missing, and as most murders of children tend to be committed by family members, he was initially treated as the prime suspect. It was not Samuels who concocted the defence proposition that Milly had run away and been murdered by someone else, but Bellfield – using the evidence obtained from the police enquiry to support his assertion. In presenting his client’s case, Samuels was doing his job – and a hard one it must have been. If I were charged with committing a criminal act, I would not want a barrister who might be intimidated by the prospect of getting a bad press. I would want them to use their best efforts in my defence. And if the backlash from this trial means that defence barristers will be put in fear of advancing their client’s case, or the law is changed to curtail their ability to do so, that will not serve to improve the criminal justice system. Indeed, it would increases the risk of miscarriages of justice. The press have made much of the cross-examination of Mr Dowler, expressing disgust at the lines of questioning he faced on some very personal issues. Yet the papers showed none of the restraint they called for from Samuels when it came to publishing details of the evidence. I do not suggest that the judge should have restricted the reporting of the case, and I don’t criticise the papers for publishing the details – it is their job to be the public’s eyes and ears. But I do suggest that media reaction to the trial smacks of hypocrisy, particularly as it was the reporting of Bellfield’s conviction for murdering Milly – with some articles including material that was not heard during the trial – that led to the collapse of the case against him over the alleged attempted abduction of another girl. The police reaction to the trial, meanwhile, was also highly questionable. Comments from the chief constable of Surrey Police, the force responsible for the investigation of Milly’s disappearance and murder, were surely ill-advised. Mark Rowley said he was shocked by the gruelling cross-examination and said the criminal justice system showed a ‘disgraceful lack of humanity’ in its treatment of the Dowler family. Yet newspaper reports suggest that his force was apparently so convinced that Mr Dowler was to blame for his daughter’s death that it kept him under surveillance. The police have not confirmed or denied this. The force denies that its investigations were hampered by their initial suspicions of Milly’s father, but has apologised for missing opportunities in the hunt for the killer that could have led to Bellfield’s arrest before he went on to murder two more victims. DPP Kier Starmer said the trial has raised some ‘fundamental questions’ about the treatment of victims and witnesses in the court process. That may be right if the CPS failed to advise the Dowler family properly of what to expect during the trial. There have been failings in this case, that is clear – but they were not those of the barrister, the judge or the trial process.
Neil McCormick, Frome, Somerset It seems to me that the judgment in Key v Key  EWHC 408 Ch is open to criticism, because the judge did not apparently consider it in any way significant, or even relevant, that the testator’s experienced solicitor (whatever else his shortcomings) believed that the testator had capacity. It is therefore interesting to read in paragraph 68 of the judgment in Thorpe v Fellowes Solicitors  EWHC 61 [QB]) that the opinion of the consultant neurologist in that case was that ‘the solicitor did not feel that there were any issues with [the claimant’s] capacity. ‘This to me means that she probably did have capacity…’ It is nice to know that the medical profession seem to have confidence in our common sense and judgement, even if the judges do not.
A group of companies, including the first, second and third defendant firms, were controlled by the same group of individuals (the group). The claimant was a high-ranking member of that group. In September 2009, he was dismissed from his employment. He subsequently began proceedings against the first and second defendants for, inter alia, wrongful dismissal. In March 2010, the first and second defendants served a defence which alleged, inter alia, that the claimant had been guilty of fraud regarding another company in the group, A Ltd. The details of the alleged misconduct were set out in another action commenced by another company in the group (the fraud action). The fraud action alleged that the claimant had conspired with C and W, two other members of the group to take secret commissions. In November 2010, the three defendants applied to the court without notice for an order joining A Ltd to the main claim as the third defendant, permitting the defendants to counterclaim against the claimant, and permitting the first and third defendants to issue an additional claim against C and W. The court granted the order. Also in November 2010, the claimant made an application for security of costs against the third defendant. On service of the order, the claimant, C and W applied for a new order to the effect that the order of November 2010 be set aside or not continued. Three main issues arose: (i) whether the court had possessed the power to join the third defendant in the employment action and, if so, whether it ought to have used that power and on what terms; (ii) whether the court had possessed the power to permit the first defendant and (if joined) the third defendant to make claims against C and W and, if so, whether it ought to have used that power; and (iii) whether the order ought to be set aside on the grounds that the application ought not to have been made without notice. On the issue of bringing claims against C and W, it was submitted that, as they were both domiciled out of the court’s jurisdiction, proceedings should be brought against them in their countries of residence, namely Spain and Scotland respectively. It was further necessary to consider whether it was appropriate to grant the claimant’s application for security of costs against the third defendant. Consideration was also given to the European Convention on Human Rights (the Convention). The court ruled:(1) All that was required for the court to be able to add a new party would be that there was an ‘issue’ to be determined, which was ‘closely connected to the matters in dispute in the proceedings’, not that that issue formed a claim for relief against the new party. The definition of ‘defendant’ in CPR r 19.2 was not intended to restrict the issues: once a party had been joined properly, he would become a defendant within the meaning of the definition (see  of the judgment). In the instant case, the court had possessed the power to join A Ltd as a third defendant. The joinder of the third defendant had been desirable so that the issue of the claimant’s alleged breach of duty to the third defendant could be resolved at a trial involving C and W. Furthermore, on the true construction of the Convention, it was appropriate for the cases against C and W to be heard in England. There was nothing to be gained in the interests of justice or administration in issuing proceedings elsewhere (see , ,  of the judgment). The order joining the third defendant to the employment action would not be set aside (see  of the judgment). Shetty v Al Rushaid Petroleum Investment Company and others  All ER [D] 195 [Jun], Christopher Pymont QC  EWHC 1460 (ch) Joinder of parties – Joinder of defendant – Claimant bringing proceedings for wrongful dismissal Knauf UK GmbH v British Gypsum Ltd  All ER (D) 180 (Apr) distinguished; Dollfus Mieg & Cie v CDW International Ltd, LBJ Regents Ltd v Dollfus Mieg & Cie  All ER (D) 229 (Mar) distinguished; Dunlop Haywards Ltd v Erinaceous Insurance Services Ltd  All ER (D) 11 (Apr) considered. (2) On the evidence, there was clearly a connection between the two claims in the matter. The claimant’s claim could only succeed if the court rejected the defendants’ contention that he had been in breach of his duty to the third defendant. Taking into account all the factors, it had been appropriate for the additional claims to be allowed. It would not matter that the claimant did not seek any relief against the defendant making the additional claim (see ,  of the judgment). The order allowing additional claims to be brought against C and W would not be set aside (see  of the judgment). James Evans (instructed by Geldards LLP) for C and W. Charles Samek QC and Joanne Sefton (instructed by Speechly Bircham LLP) for the claimant. Kinnear v Falconfilms NV (Hospital Ruber Internacional, third parties)  3 All ER 42 considered; Waterford Wedgwood Plc v David Nagli Ltd  FSR 92 considered; Kongress Agentur Hagen GmbH v Zeehaghe BV: 365/88  ECR I-1845 considered; Barton v Golden Sun Holidays  I.L. Pr. 57 considered. (3) On the evidence, it was possible that if the application had been made with notice, the claimant would have informed C and W about it whilst awaiting a hearing, and one or both of them would have commenced proceedings in another jurisdiction, frustrating the purpose of the application. A Ltd, the first defendant and the second defendant had had a firm evidential basis that the claimant and C and W had been engaged in a conspiracy to procure the payment of secret commissions to themselves. In such circumstances, it was unsurprising that the applicants had sought to proceed without notice. Further, on the facts there had been no material non-disclosure. Furthermore, on the true construction of the order, it was incorrect to suggest that the court had declared that it had no jurisdiction over C and W in relation to the claims in the fraud action (see , ,  of the judgment). There was no reason to interfere with the decision to proceed without notice (see  of the judgment). (4) On the facts, the application for security of costs had been made promptly and was not being used improperly. It would be inappropriate to enter into detailed discussion of the general merits of the third defendant’s claim. On the material before the court, it would be appropriate to make an order for security of costs (see  of the judgment). It would be appropriate in the instant case to make an order for security of costs (see  of the judgment). Andrew Moran and James Mather (instructed by Kingsley Napley LLP) for the first, second and third defendants.
Queuing in the driving rain at the bus stop outside the Royal Courts of Justice last week, Obiter chanced across a lawyer chum just returned from Johannesburg, where, he said, it had been 20C and sunny every day. The conversation inevitably led to the potential merits of setting up practice in another hemisphere. But that afternoon, the latest edition of De Rebus, magazine of the Law Society of South Africa, landed on Obiter’s desk. The all-too-familiar headlines revealed that the South African legal profession is worried that too many people are qualifying into it, and is concerned about access to justice. The letters page saw lawyers arguing over who is increasing costs by creating delays in court, and there is quite a debate raging over who should be able to conduct conveyancing work. Sounds a bit too much like home from home for Obiter’s liking.
The defendant, aged 34, was in an on and off relationship with the victim. They had an argument while they sat in the defendant’s car because he had reported the victim to the authorities regarding her receipt of housing benefits. The victim, who was five months pregnant, got out of the car and walked home. The defendant drove to her home. He confronted her, calling her ‘fat’,’ worthless’, a ‘cunt’ and a ‘whore’. The victim responded by calling the defendant a ‘grass’. The defendant picked up a stone and threw it at the victim’s head, narrowly missing her. He got into his car and reversed, hitting a railing surrounding some trees. He then drove forward at around 11 to 13 miles per hour. The victim was in the road in front of him calling her dog. The defendant drove the car directly into her, causing her to fall to the ground. He immediately reversed and went to help the victim. The emergency services were called and she was taken by ambulance to hospital. The victim sustained abrasions to her elbows, knees, chin, chest and abdomen. Her unborn baby was not injured and was subsequently safely delivered. The defendant, who had previous convictions for violent offences, was arrested. The original indictment charged him with causing grievous bodily harm with intent. At the plea and case management hearing, the defendant indicated to the court that he would be applying to dismiss the charge as the victim’s injuries, as alleged by the prosecution, did not disclose the charge of causing grievous bodily harm. The prosecution later accepted that contention and the indictment was amended to a charge of attempting to cause grievous bodily harm with intent (count one) and a count of assault occasioning actual bodily harm was added, as the alternative charge. The court was subsequently informed that the defendant was willing to plead guilty to the alternative charge of assault occasioning actual bodily harm, on condition that the prosecution did not proceed with count one. The prosecution was not prepared to accept that course and consequently, the defendant did not plead at that stage. On the day of trial, the defendant pleaded guilty to the alternative charge of assault occasioning actual bodily harm. The judge, having considered the definitive guidelines of the Sentencing Guidelines Council, held that a discount of a sixth would be given. The defendant was sentenced to three years and four months’ imprisonment. He appealed against sentence. The issue was whether, in accordance with the sentencing guidelines on reduction in sentences for guilty pleas, which stated that the level of discount should reflect the stage at which the defendant had indicated a willingness to plead guilty to an offence, the defendant was entitled to a greater discount in sentence. The appeal would be dismissed. In the instant case, the judge had not erred in giving the defendant limited credit for his guilty plea in circumstances where the defendant had not in actual fact pleaded guilty until the day of trial. Whilst there was no doubt that the defendant had admitted a willingness to plead guilty to assault occasioning actual bodily harm, it had been conditional upon the prosecution not proceeding with count one. Imprisonment – Length of sentence – Assault occasioning actual bodily harm R v James: Court of Appeal, Criminal Division (Lord Justice Richards, Mr Justice Keith, Mr Justice Nicol): 22 September 2011 Gordon Ross (assigned by the Registrar of Criminal Appeal) for the defendant.
Judicial independence in Hungary is facing its biggest threat since the country’s 1989 revolution, following the government’s decision to force 200 judges into retirement and replace them with nominees of a single politically appointed individual. This development is one of several legislative changes introduced by prime minister Viktor Orban, who swept into power with a so-called ‘super majority’ in 2010. These include restrictions on the media, the arts, churches and the central bank, as well as the effective seizure of €10bn in private pension assets. The judges’ retirements were forced by reducing the retirement age from 70 to 62 years. This measure and changes to the pension system have led to nearly 8,000 individual applications being lodged against Hungary at the European Court of Human Rights in the last month. Council of Europe secretary general Thorbjorn Jagland wrote to Hungary’s foreign affairs minister Janos Martonyi on 11 January to remind him of the country’s obligations ‘flowing from its membership of the Council of Europe’. He said that the government should respect not only ‘human rights, democracy and rule of law in the course of the legislative process’, but also the ‘underlying principles of democracy’ and the ‘checks and balances ensured through the proper functioning of independent institutions’.