Legal costs : Part 1: Professional Conduct : Out come A3

Legal costs[i]:

What is Legal cost?

It’s the lawyer’s fees + disbursements to the parties.

What can be claimed/ recoverable costs[ii]?

Solicitors fee Value Added Tax Witness allowances Professional fees for other services agreed upon Success fee under CFA (Conditional fee agreement) Damaged based agreements After the event insurance premium

How it is paid?

General rule:

Every client is bound to pay an initial fee to their solicitor (this includes part of solicitor fees, cost of possible disbursements etc.)

Then, if the litigation is successful, the court will ask the losing party  to pay the cost of winning party.

However, on a practical point of view you cannot always expect that the other party will pay you the whole amount or you will get a reimbursement of the full amount you spend on this litigation (or the amount of your expectation, there are certain criteria or real life situations which makes it not possible for the other party to pay you what you are entitled, one such situation is the opposite party being bankrupt). So as a solicitor you should always warn your client about this risk involved.

It is also possible that there is still a difference between the actual solicitor fees and disbursements and the actual amount awarded as costs. In situations like this winning party is personally liable to pay the difference to his solicitor.

Who will be asked to pay (by the court/ tribunal)?

Yes, the general rule is the losing party bound to pay winning party. But that is not always the case, The Court can order ·        Any party ·        Third party. ·        Sometimes even lawyers personally

What is the basis on which costs are awarded[iii]?

There are two basic principles which will help the court  decide the cost calculation and they are 1.       The indemnity basis 2.       The Standard basis And the court has the discretion to use either one of them.

Before going into a detailed analysis of indemnity basis and standard basis assessment, we should have an idea about Indemnity principle.

Indemnity principle: General rule: You (payee) are supposed to pay only the amount agreed by the winning party (receiving party) and his solicitor in their retainer (client solicitor contract), nothing more. The problem here is probono cases: In probono cases, the lawyer agrees to represent the client for free, so there is no contractual term for fees in their agreement and as a result of this they cannot claim their costs from the winning party. In order to overcome this difficult situation, the Court invokes the provision of s 194 of Legal Services Act 2007[iv]. This section allows the court to order for a charitable donation in lieu of costs. There are also specific exceptions for in-house lawyers, conditional fee agreements, Legal aid cases, litigation in person. But don’t get this confused with indemnity cost, indemnity cost is a method of cost calculation court’s use in awarding costs.

The golden rule followed by the court in awarding costs:

The court will never allow an unreasonable amount or an amount incurred as a result of unreasonable events or transactions[v].

So in both the situations (Indemnity basis and standard basis) the court will give prime importance to the rule of reasonableness. In order to determine the reasonableness court will look into the following factors

1. Retainer
2. Conduct of parties
3. Value of property in question
4. Nature of the case
5. Skilled required and resources utilized.
6. Time dedicated for the particular cases.
7. Relevant geographical locations.

After taking into account all these factors the court will determine whether a claim for the cost is reasonable or not.

Standard cost	Indemnity cost[vi]
Cost must be proportionate to the matter in issue. CPR 44.3(2)	Cost need not be proportionate CPR 44.3(3)
Key points: 1.     Reasonably incurred 2.     Reasonable amount 3.     Proportionate.	Key points: 1.     Reasonably incurred 2.     Reasonable amount
In case of any doubt the court favors  the paying party.	Favors the receiving party.

 

Damage based agreements:

The Indemnity principle doesn’t apply to DBA’s. So the party seeking cost’s cannot ask for more than the total amount payable under DBA.

For example

Personal injury case: Court awarded Mark £50,000 as damages and £3000 as the cost. So Tom, Marks solicitor, can claim 25% of the damage that is £12,500 (That is the maximum).

So the calculation will be like this as the legal representative, he is entitled to the £3,000 from the other party and Mark will pay £9,500 from the damage money, making it up to a total of £12,500.

If this scenario is an employment matter, then Mark is entitled to 35% of the sum awarded.

That means the maximum of £17,500.

In all other civil cases the maximum threshold is 50%. So always make sure you include the legal cost within this 50%.

 

(… To be continued)

 

[i] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs

[ii] Susan Cunningham Hill & K. Elder, Civil litigation Handbook 2014-2015,p 44-47

[iii]Ibid.,p.40-43.

[iv] http://www.legislation.gov.uk/ukpga/2007/29/section/194

[v] https://www.supremecourt.uk/procedures/practice-direction-13.html#03

[vi] http://www.lawgazette.co.uk/law/indemnity-costs-can-add-woe-to-a-losing-partys-bill/50629.fullarticle

Legal Professional Privilege: A3 outcome Professional Conduct

Among all the fiduciary duties a solicitor owes to a client, Client confidently is the core one.  It is a fundamental human right recognized by English common law and European court of Human rights

Unless otherwise required by law[i], the solicitor (and his staff) should always exercise his duty of confidentiality, even after the termination of the retainer (solicitor client contract). Legal professional privilege is an exception to this rule[ii].

What is Legal Professional Privilege/ LPP?

Legal Professional Privilege entitles a party (or his successor in title) to withhold evidence (oral or written) from production to a third party or the court[iii]. This common law recognized principle ensures that information which fall under the category of LPP is always protected and only the concerned client can waive this immunity granted.

For the purpose of LPP the communication must be with a lawyer and lawyer only includes solicitors and their employees, barristers and in-house lawyers.

There are two types of legal professional privilege

1.                  Legal advice privilege-  This protects the confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice[iv]. 2.                  Litigation privilege-  This safeguards confidential communications between lawyers and their clients, or the lawyer or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation[v].

Points to remember:

• Communication must be confidential.
• Can the presence of a third party is required during client – council interview?

In the case of R v Brown (formerly Latham) court held that, It would be appropriate to impose a requirement that particular individuals could be present at discussions between an individual and his lawyers if there is a danger of misuse/improper use of LPP[vi]. One example is lawyers life in danger interviewing a mentally ill and aggressive client.

……………………………

[i] The Freedom of Information Act 2000, Data Protection Act 1998 and Part 31 of the Civil Procedure code are some of the relevant statutes here.

[ii] http://www.lawsociety.org.uk/support-services/advice/practice-notes/aml/legal-professional-privilege/

[iii] http://uk.practicallaw.com/4-107-6756

[iv] Ibid

[v] ibid

[vi] http://lexisweb.co.uk/cases/2015/july/r-v-brown-formerly-latham

A8-Property law- Easements/ Servitude-Part 1

• Easements/ Servitude – Is a right enjoyed by a landowner/ tenant over a neighbour’s land.
• Cases: Re Ellenborough park[i] (1956) Ch 131
• There must be a dominant and a servient tenement:
• Right must be related to two separate plots of land:

As described in the above picture D land and S land don’t need to be adjoined, a close enough connection (propinquity- near enough) is necessary to establish the easement.

• It is a right attached to land. Not a right attached to a person.
• Whether a public right of way is an easement?
• No, because there is no dominant tenement.
• General rule is easement is for the benefit of enjoyment of land not for pure personal or business interest or for pure recreational use.
• Cases: London & Blenheim Estates Ltd v Ladbroke Retail Parks [ii]
• Hill V Tupper[iii]– Right to put pleasure boat, held right was not more than a license.
• Moody v Steggles (1879)12 Ch D 261– Q: Right to fix advertising sign- here right recognized.
• We can say that courts often look into the circumstances of the cases to decide an easement right.
• Mounsey v Ismay[iv]– ‘Must be a right of utility and benefit, and not one of mere recreation and amusement’-annual horse racing-refused as an easement right[v].
• International Tea Stores Company V Hobbs[vi]
• British Railways Board V Glass [vii]– Increase use of railway crossing over the years, but that will not prevent the use of E. Right as long as the nature of the use didn’t vary.
• Jelbert v Davis[viii]– But in this case the nature of right varied.
• Greatorex v Newman[ix]– Right of passage enjoyed by the shop owner and staff,the easement is not extended to customers.

o   The Dominant and the servient tenements must be not be owned and occupied by the same person. o   But a tenant can acquire an easement over landowner’s land. o   Other requirements: Grantor and grantee must be legally capable. o   Clearly defined rights- not vague (like good view, good prospect etc.). o   Clearly defined dominant land and servient land o   It should qualify the nature of an easement (not other rights defined under statute or common law).

[i] Re Ellenborough park (1956) Ch 131

[ii] London & Blenheim Estates Ltd v Ladbroke Retail Parks (1992) 1 WLR 1278

[iii] Hill V Tupper (1863)2 H & C121

[iv] Mounsey vIsmay (1865) 3 H & C 486

[v] Judith, B. Unlocking Land law (2011) 3^rd Edn. Hodder Education.p255

[vi] International Tea stores Compnay v Hobbs (1903)2 Ch 165

[vii] British Railway Board v Glass (1965) Ch 538

[viii] Jelbert v Davis (1986#01 WLR 589.

[ix] Greatorex v Newman (2008) EWCA Civ 1318

A8: Property Law: The Trusts of Land and Appointments of Trustees Act 1996: TOLATA .Review and revision note

The Trusts of Land and Appointments of Trustees Act 1996: TOLATA[i].

TOLATA brought major changes to the Law of Trusts. We are going to look into some of the major changes came into operation through LOLATA.

1.     Renaming trust of Land 2.     Trust of land includes all trust property, including land. 3.     It also includes different forms of trust-express,implied, resulting,constructive and trust for sale and bare trust. 4.     Abolition of doctrine of conversion- beneficiaries have interests in the land itself[ii] 5.     Right to create a strict settlement was abolished[iii]. 6.     Extension of powers and rights of Trustees- all powers of an absolute owner including the power to sell and retain the land for beneficiaries. v They also have the power to buy, lease,  and mortgage land. v Power to partition with the consent of beneficiaries- (B’s must be of full age, must give unanimous consent, they must be absolutely entitled to the estate) 7.     Power of investment is also recoganised along with power to delegate. v  After a proper delegation of powers, trustees won’t be liable for the defaults of the beneficiaries. (Test: whether trustees exercised such care and skill as is reasonable in the circumstances)[iv]. v Delegation can be revoked by any one of trustees (also automatically revoked if a new trustee is appointed or a beneficiary loses his interest in the estate) 8.     Extension of powers and rights of beneficiaries- Right to be consulted by the trustees in relation to trust land sale (section 11). v But Trustees are under no duty to follow their instructions. v Trust instrument also can expressly exclude right to consult. v The Court also can suspend the right to consult. 9.     B also have a right to occupy the Trust land. Case : Chhokar V Chhokar[v]: Husband sold the house without the wife’s knowledge to a friend.The  Wife had an equitable right in the property, so she had a right to live in the property. Limitations : IF there is more two or more beneficiaries claiming possession. Cases: Barclay v Barclay[vi]: Trust for sale after settlor’s death, but one beneficiary living there. The Court held- property should be sold. Rodway v Landy[vii]: Partition of trust land is possible. §  Beneficiaries also can appoint or remove trustees (s19). 10.                        More powers to the court in relation to make orders (Trust).

v Who can make an application under s14 before a court of law? v A trustee v A Beneficarie with interests in possession or in the remainder v A mortgagee v A trustee in bankruptcy of a beneficiary v A creditor with a charge against the property of the beneficiary. Cases: Ø  Barca V Mears[viii]: Fact-Bankrupt family with special need child- Human rights (respect for private and family life) vs right of creditors recovery- Court refused the claim: Circumstances  qualified as exceptional. Ø Nicholls v Lan[ix]– Husband bankrupt, wife’s schizophrenia- court postponed sale for 18 months. Ø Bank of Ireland Home Mortgages Ltd V Bell (2001) 2 All ER (Comm)920. The Bank has right over property, irrespective of wife’s ill health (wife holding 10% of share in property).

Overreaching: Ø Following  a correct procedure, the purchaser is entitled to the legal estate free from all rights. Beneficiary’s right over the land is now transferred to the ‘purchase money’.

P.S : For MCT exam purpose : Before reading land law, I request you to read Trust and Equity. Then it will be easy for you to understand land law especially Trust of Land.

……………………………………………………..

[i] Judith,B.(2011) Unlocking Land Law.3^rd Edn. Hodder Education.Chapter 9.

[ii] http://www.geocities.ws/da_knowles/LawofPropertyone.html

[iii] Judith,B.(2011) Unlocking Land Law.3^rd Edn. Hodder Education.Page 220

[iv] Ibid.p.227

[v] Chhokar V Chhokar (1984)FLR 313

[vi] Barclay v Barclay (1970)2 QB 677

[vii] Rodway v Landy (2001) Ch 703

[viii] Barca v Mears (2005) 2 FLR 1 (Ch D)

[ix] Nicholls V Lan (2007) 1 FLR 744.

A2: Constitutional law: Parliamentary privilege.

I hope

1. Constitutional law: The Queen and The Parliament: and

2. Constitutional Reforms Act 2005 : was helpful for you in your constitutional law studies. Today we will look into Parliamentary privilege.

• Parliamentary privilege:
• It is the right and immunities given to both houses of Parliament[i]– It provides legal immunity for things said in parliament as part of parliamentary proceedings.
• The privileges-
  • Freedom of speech(Art 9 of the Bills of Right 1969),
  • Freedom from arrest (on civil matters),
  • Freedom of access to the sovereign[ii]
  • That the most favourable construction should be placed upon the deliberations of the Commons[iii].
• The standards and privileges committee ensure that members adhere to their legal limits while exercising their parliamentary privilege.
• It also specifies that members must use parliamentary language[iv]
• It also comprises of –
• Right to determine composition,
• Right to regulate internal proceedings,
• Right to punish individuals for contempt of breach of privilege ( Mark and Steve,2014)

Cases:

• A v United Kingdom[v] : Debate in parliament protected.
• R v Chaytor and others[vi]: MPs will be liable for prosecution in case of false accounting.
• Fred Goodwin v News Group Newspapers Ltd and VBNand CTB v News group newspapers  – Right of the media to report on anonymised court injunctions; parliamentary privilege used to allow the media to report the existence of injunctions and the parties involved [2011][vii]

…………………………………………………………………………………………………………………………………………………….

[i] Mark, R. and Steve, F.(2014) Unlocking Constitutional and Administrative Law.OUP

[ii] http://www.parliament.uk/site-information/glossary/parliamentary-privilege/

[iii] https://en.wikipedia.org/wiki/Parliamentary_privilege

[iv] http://www.parliament.uk/site-information/glossary/parliamentary-privilege/

[v] A v United Kigdom (2003) 36 HER 51

[vi] R V Chaytor and others (2010) UKSC 52

[vii] http://www.liquisearch.com/parliamentary_privilege/leading_cases

A2: constitutional law: Constitutional Reforms Act 2005 : Revision Note:

·        Major changes brought by the act: 1.     Supported the separation of powers. 2.     Executive members cannot influence judicial decisions. 3.     Independence of the Judiciary is more strengthened[i]. 4.     Government ministers are under an obligation to uphold the independence of the judiciary. 5.     Reform the office of Lord Chancellor[ii]– ·        Judicial functions were transferred to the President of the courts of England and Wales.[iii] ·        Executive functions transferred to Secretary of State for Justice (Head of Ministry of Justice). ·        Parliamentary functions are now undertaken by the Lord Speaker of House of Lords. ·        Lord Chancellor is a member of Cabinet. 6.     Established a new supreme court. Now the final court of Appeal in all cases is S.C[iv] Appointment of S.C Judge– (a)held high judicial office for a period of at least 2 years, (b)been a qualifying practitioner for a period of at least 15 years. 7.     Creation of Judicial appointments commission, for selection of judicial candidates . 8.     Created Judicial Appointments and Conduct Ombudsman[v].

[i] http://www.legislation.gov.uk/ukpga/2005/4/contents

[ii] http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15110.htm

[iii] Public Law, C.Faragher, 2^nd edition.p 32.

[iv] Not for Scottish Criminal cases.

[v] Ibid

A2: Constitutional law: The Queen and The Parliament:

Important points to remember:

1. ‘Queen in Parliament’ or British legislature consists of  The Sovereign, the House of Lords and the House of Commons.
2. The Queens main duties-  1) Opening new sessions of parliament (state opening)2) approving orders and proclamations through privy council. 3) The Crown dissolves Parliament before general election.
3. Queen appoints the government (1): The leader of the winning party(most seats in the House of Commons) is invited by the queen to became the PM and to form the new government.
   

4. Queen’s Speech: Even though government prepares the content the crown delivers the speech in parliament informing government policy ideas for the  coming sessions of parliament and plans for new legislation via Queens speech(2).

5. Royal assent- Monarchs assent is required for all bills, then only it became the law.
6. Fixed term Parliaments Act (2011)-each Parliament consists of five twelve-month sessions opened by the crown.
7. Royal Prerogative : According to A.C Dicey  prerogative powers are: the remaining portion of the Crown’s original authority, and it is therefore … the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or by his Ministers. (3). Historically the monarch was able to exercise R.P powers on his/her own initiative, but now only theoretically. In practise The queen consults the PM or the Cabinet before exercising prerogative rights. (Exception : Emergencies). The rights are boarder and not written down in a document.

Reference :

(1) http://www.parliament.uk/about/how/role/parliament-crown/

(2)http://www.royal.gov.uk/MonarchUK/QueenandGovernment/QueeninParliament.aspx

(3) https://en.wikipedia.org/wiki/Royal_prerogative

MCT: A10 outcome: Human Rights: Judicial Review : Part 1 (some important points to remember)

1. Art 2 : Right to life shouldn’t be read as right to die (Pretty v United Kingdom).
2. Section 3 HRA Right to judicial review of Acts of Parliament.
3. Grounds for judicial review outlined in Council of Civil service unions V Minister for the Civil service (1985) AC 734.
4. Main heading are: Illegality, Irrationality and Procedural Impropriety.

·         Proportionate test[i]: ·         “You must not use a steam hammer to crack a nut, if a nutcracker would do.” ·         This is the basic essence: Do what is absolutely necessary. ·         Important requirements  Legitimate aim for a measure The measure must be suitable to achieve the aim The measure must be necessary to achieve the aim and there is no alternative way to do it The measure must be reasonable. ·         (Important case :  R (Carlile) v Secretary of State for the Home Department[2014] UKSC 60 ) ·         P.T test is also an essential element of administrative law[ii].

4. Right to raise convention questions in the domestic courts is available in UK.
5. As far as possible court likely to give equal importance to right to privacy (Art 8) and freedom of expression (Art 10). However, Art 12 gives some extended protection to Art 10.
6. Damages : Human rights : 3 criteria: 1) Existing public and private law remedies must be inadequate. 2) There must be a clear causal connection between the damage claimed and violation of convention right.3) A sufficient degree of gravity(iv)( For more info)

UK Courts are not entitled to strike out a primary legislation, but they can make rulings to the effect that legislation is incompatible with Convention rights

[i] http://publiclawforeveryone.com/2014/11/13/human-rights-proportionality-and-the-judicial-function-r-carlile-v-home-secretary-in-the-supreme-court/ & (Suggested further reading: Judicial review and Proportionality.)

[ii] http://www.sjol.co.uk/issue-3/proportionality

[iv] http://ukhumanrightsblog.com/2013/01/09/a-moral-assessment-of-the-european-court-of-human-rights/

P.S : For more cases visit this linked site.

Major EU Institutions: Role and Purpose 1- The European Parliament, European Council and Council of European Union.

Major EU Institutions: Role and Purpose Part1- The European Parliament, European Council and Council of European Union.

Institution	Purpose/Main role	Members
The European Parliament	*Protect member’s interest. *Legislative[i]-Passing EU Laws (through co-decision-with council of ministers) *Decisions of international agreements and enlargements *Budgetary-debates and adopts the EU budget together with the Council *Supervisory-Supervise EU institutions, elections, question commission and council, *Control of the executive *Motion of censure-If there is 2/3rd majority of the vote cast (representing a majority of parliament’s component member) parliament can compel the Europen commission to resign.	·         Direct election of MEPs ·         No of MEP’s proportionate to the size of their representing country ·         Held every year ·         EU citizens can vote + right to contest ·         745 members ·         28 member states
European Council[ii]	Setting out EUs policy agenda	·         President of the members is elected by the members of the European Council ·         Members are not directly elected by citizens ·         Consists of most senior elected political representatives of member states. ·         Members are the senior Political representatives of member states (example Prime minister) The Europen Council President and President of the Europen Commission..
The council of European Union[iii]/Council of EU/ Council of Ministers[iv]	*Unanimous voting- in the areas of foreign [v]policy, defense, amending EU treaties, accepting new members and taxation Enactment of legislations *Otherwise majority voting system. *adoption and coordination of EU laws and policies (some specific area’s employment and fiscal policy, education, culture and youth and sport) *Develops the EU’s foreign and security policy in accordance with Europen guidelines, also shares law-making and budgetary power with EU Parliament. *Decisions – most often qualifying majority is required (other areas requires unanimity are foreign policy, defense, judicial and police cooperation, and taxation).	·         Ministers representing states.

[i] http://europa.eu/about-eu/institutions-bodies/european-parliament/index_en.htm also QLTS schools study materials.

[ii] http://www.consilium.europa.eu/en/european-council/

[iii] http://europa.eu/about-eu/institutions-bodies/council-eu/index_en.htm

[iv] http://www.consilium.europa.eu/en/council-eu/

[v] http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.3.2.pdf

Legal Profession: MCT Revision:

Legal Profession:

Divided into two branches

Body	Regulating authority	Qualification	Career path
Solicitor	Law Society (through SRA)	Qualified legal advisor- (now they are also in direct contact with clients)	·         Degree in any subject +GDL+ Law graduate route(Law degree+LPC+Tranining contract+PSC) ·         Law graduate route(Law degree+LPC+Tranining contract+PSC) ·         CILEx ·         QLTS
Barrister	Bar Council	Qualified legal advisor-direct contact with clients.	·         Completed the academic stage of training+Pupillage. ·        Called to the Bar by the Benchers of one of the 4 inns.

Lawyers from other EU countries:

Admissibility as a UK solicitor: 3 years practice of UK law including EU Law (Registration with the law society is also a mandatory requirement).