COUNCIL MEMBERS REPORT FEB 2019


When I came to write this report, I glanced at what I had written last time, and was struck by the extent to which in many ways nothing has changed since December.  We are still in the middle of Brexit, on which we had a session on the eve of the Council meeting.  The consequences of a No-Deal scenario would spread into areas which will not have occurred to most people.  For example, if there is no deal, resolving disputes about goods bought online would in many cases have to be pursued in a foreign jurisdiction not in the UK.  (Amazon, for instance, is based in Luxembourg.)

Reverting to the topic of our dysfunctional criminal justice system, I was given a copy of “The Secret Barrister” in January.  This is an entertaining read, and should be compulsory for anyone who cares about criminal justice.  I don’t just say that because the anonymous author draws the same conclusion as I did when last writing to you – people don’t care because no-one thinks it will affect them (and those who find it does, find out too late).  The examples given of cases going wrong because the under-resourced CPS and/or the police have not dealt with the investigation and assembly of all relevant evidence (and thereafter disclosure) properly make chilling reading, and don’t forget that even if it turns out that a case should never have been brought, an innocent defendant may have spent thousands on costs, only to recover a derisory contribution to those costs at the end of the day.  I wonder what would happen if a case for negligence was brought against the CPS or the police in situations where there has clearly been such a failing on the part of either to do the job properly.

On a slightly more cheerful note, the government has taken some notice of the points made by the Law Society in its representations to the review of the Legal Aid Sentencing and Punishment of Offenders Act.  Of the Law Society’s twenty-five recommendations, eight have been accepted, seven have been partly accepted, and work is continuing on the remaining ten.  This is the first time in twenty years that any government has made proposals to improve the system, rather than just make cuts, but there is a very long way to go.  

The Law Society is leading attempts to persuade the government to abandon its probate fee increases (which are really a back-door increase in taxation).   Lobby your MP if you have the chance, because the vote has not yet come up in Parliament, and these days the Parliamentary arithmetic makes it possible for the government to be defeated.

A new Practice Note on Non-disclosure Agreements has been issued, which I commend to you.  There is always the danger that reaction to one or two high-profile cases undermines perfectly normal and proper commercial practice, but hopefully the guidance offered will be helpful and an authority on which to rely if any argument arises.

At the Council meeting I stressed how important it was, in the light of the SRA’s latest de-regulation of practitioners, that solicitors were not placed in the position of not knowing whether it was safe to accept an undertaking from another solicitor.  I said the SRA needed to be pressed to confirm that this situation could not arise in their proposed new arrangements, and I was assured that this matter would be taken up.  Watch this space, but don’t hold your breath!