Many lawyers perceive legal technology companies to be a threat to the traditional ways of delivering legal advice and charging models. They argue that each client’s circumstances are different, that it’s risky to rely on templates, however good they are and however interactive and so on. But are these firms missing the point ?

We read somewhere, and apologies that we can’t remember where, a survey which stated that of the more than 5 million very small businesses in the UK, something like 50% or more don’t use solicitors – the reason cited as the number 1 for not using solicitors is charge. When we talk to small businesses they perceive that it is virtually impossible to use a lawyer for a cost of less than £1,000.00.

What this means is that there is a gap in the market and a sizeable one at that – there is no question that small businesses need support, especially legal support, and especially at the start up stage. Once a relationship is developed at an early stage with such businesses they may well go on top become long term clients who spend more as they grow and their legal needs become ever more complex.

So, it’s surprising that more law firms are not currently embracing some of the legal tech products and online documents out there such as Mylawyer, especially as they enable the law firm to still be involved in the process by being in a position to offer to review the interactive legal document created by a client.

Technology marches on, will lawyers miss the beat ?

One of the main issues that divorcing couples have are in relation to their children in our experience as divorce solicitors in London, is who the children will live with after the divorce, who the main carer will be and the amount of contact that the non resident party will enjoy with the children.

In the best case scenario and where relations between the parties remains amicable, contact will be agreed and an informal contact schedule will be drawn up , with further contact to be agreed between the parties, or varied by agreement. Unfortunately this is not always the case and solicitors may have to intervene to negotiate a contact schedule. If this is not adhered to by the parties, or if it becomes unworkable, the solicitor is likely to suggest applying to the court for a contact order. This is binding on the parties and action can be taken to enforce the same through the courts.

If relationships are fraught between parties or if there is a degree of risk to the child, be it from the suitability of the home for contact to the mental competency of the non resident party, a court will bear each factor in mind when deciding what type of contact order to make. There are three main types of contact that a court may include in any order it chooses to make, and these are listed below:

• Direct contact – this type of contact does not have any restrictions and is the time that is spent with the non resident parent. This can be visiting contact, where contact is during the day, staying contact, which encompasses overnight stays during the week or over the weekend, and includes holidays spent with the non resident parent.

• Indirect contact – this type of contact includes contact by the telephone, letters, email or other methods, such as texts and Skype.

• The third type of contact is supervised contact and this means that another appointed adult is present when the non resident parent has contact. This will be considered where social services are involved or the judge considered that this would be in the best interests of the child.

The non resident parent has the right to reasonable contact time, but as the welfare of the child is the paramount consideration of the court, pursuant to the children act 1989, this will be at the forefront of their minds when making any contact order. Hwever, they also recognise that it is in the child’s best interests to maintain a good relationship where possible with the non residing parent, and therefore contact may be ordered every other weekend, on an occasion during the week and shared school holidays, to ensure that the child spends as equal amount of time as possible with both parents.

Birthdays, religious holidays and family occasions must also be taken in to account and in the best case scenario, these may be alternated. The children’s social activities and school run rota must be discussed and the parties should endeavour to put in place a system that is satisfactory for all, and from which the child obtains the most benefit. Where changes may take place, the child should be kept informed of this with as much notice as possible, in order for this to have the least disruptive effect on their emotional well being.

Where the parties are unable to agree on contact arrangements but neither party wishes to go to court, mediation may be an option. Here, issues can be discussed and the mediator can try to aid the parties in coming to a compromise in relation to the same.

For more advice on this issue, visit http://www.darlingtons.com or contact Maya Bhatiani.

In the UK we have a deep rooted history of placing human rights at the top of the agenda when it comes to administering justice. At the centre of human rights law is the principle now enshrined in Article 6 of the European Convention on Human Rights (ECHR). That principle is the right to a fair trial and it covers all aspects of the trial process. The fundamental purpose of human rights is to ensure every person is treated in a way which does not offend the rules of humanity. If operating within these rules then people, organizations and governments may have free reign to attempt to achieve the results they desire.

Human rights for all

Most people would agree that everyone is entitled to the same basic human rights but attitudes are often tested when the person whose rights are being protected is a figure of public hatred and repulsion. It is often argued by pro capital punishment campaigners that entitlement to life is not a right but a privilege which is lost when the most egregious acts are committed. But who is to say when these privileges are lost? By the very wording of the ECHR and in common parlance these entitlements are referred to as rights rather than privileges, it is submitted that is what they should be. The average law abiding citizen who works in the City and spends evenings in her plush apartment will seldom need to be protected from having her human rights breached. Contrary to public belief it is not a breach of human rights for The Voice to overlap with Britain’s Got Talent. Whereas, for a terrorist suspect who is awaiting trial in a country which uses torture as an interrogation technique, whose execution is being campaigned for and against who much bias is displayed, entitlement to human rights becomes a lot more relevant. Is it not these people that human rights are intended to protect in order to deliver true justice?

Abu Qatada

Abu Qatada is a radical Islamist preacher whose ideas mirror al-Qaeda’s basis for justifying violence. He is linked with militant Islamists worldwide, but particularly in Algeria and Egypt, who have justified attacking civilians by following his religious rulings. Amongst his public addresses Qatada has mounted attacks on the Jewish faith and issued various religious rulings which promoted suicide attacks.

Whilst Qatada has been in Britain, the Jordanian courts have convicted him in his absence for his part in a plan to attack American and Israeli tourists back in 2000. He has contested his deportation from Britain on the grounds that he would not receive a fair trial in Jordan and hence deportation itself would breach his human rights. The highest court in the land, the then House of Lords, has declared his deportation legal but they no longer have the last word. The European Court of Human Rights in Strasbourg have decided that his deportation cannot take place as they feel that, in Jordan, evidence will be used at his trial which has been obtained under torture. UK’s Home Secretary Theresa May is striving to gain undertakings from the Jordanian authorities that torture evidence will not be used and Qatada’s lawyers have recently appealed to the highest court in Europe. At present Qatada is not going anywhere until these matters are resolved.

Why is it our problem?

There is certainly a school of thought that would advocate for any responsibility for breaches of human rights in Jordan being borne solely on Jordanian shoulders. As a nation, however, we pride ourselves on upholding human rights and unless we are convinced that a fair trial is awaiting Abu Qatada upon his return to Jordan it is difficult to justify his extradition.

The usual way for a law firm to bill a client is by a certain amount per 6 minutes of work done for them, 6 minutes being one tenth of an hour. Although that is standard practice there are other ways of billing clients, these are referred to as alternative fee arrangements. An alternative fee arrangement can be beneficial to both parties; making litigation affordable, the pricing transparent and bringing business in to law firms. However, for law firms it can also present a risk of working for no money and in some cases losing money through expenditure. Types of alternative fee arrangements can include:

• Conditional fee agreements – where a fee is only payable upon winning or settling a case;

• Fixed fees – where a fee is agreed prior to taking a case on and remains the same regardless of how much or little work is required of the law firm;

• Flat fees – where a fee is agreed for a number of cases of a client, either a set number or any within a certain time period.

Alternative fee arrangements are not the preferred way of billing for most law firms but the current trend points to an increase in their use. Some law firms have bitten the bullet and implemented non-conventional billing in apparent acceptance of the fact that it is the future.

Finding out what is expected by clients

An American law firm, Pepper Hamilton LLP, who have offered alternative fee arrangements since 2008 recently conducted a survey into how companies perceive the role of law firms. They targeted 54 large companies, some clients some not, who do not rely solely on in-house legal departments. Most of the companies had annual legal bills ranging from $1 million to $5 million. They hope to use the results to shape the way they use alternative fee arrangements in the future.

What do they expect?

Interestingly enough 70% companies in the study had an expectation that law firms would operate more and more using alternative fee arrangements. They felt that there were major benefits in operating thus, including value for money, transparency and lower risk. As many as 90% were engaged in some form of alternative fee arrangement, with fixed fee agreements topping the popularity chart, although half of them stated that only six to twenty per cent of their transactions were not conventionally billed.

It appears that conventionally there has been a divide in commercial matters and litigation, alternative fee arrangements being used for the former but not the latter. However, the survey revealed an increase in the amount of litigation which was dealt with in the same way and seemingly a desire for all work to be dealt with in this manner. Pepper Hamilton seems determined to construct a model whereby all legal work for a company can be covered by one flat fee.

Strangely, although a rise in alternative fee arrangements was requested by the majority of sample companies, most rated their experiences of using them as moderately satisfactory.

What will the future bring?

Of course companies want legal services provided for them to the highest standard for the cheapest price and it may be beneficial for them to pay one flat fee. Unfortunately legal issues are not predictable and twists and turns can make the workload for lawyers spiral out of control. It is important that lawyers receive proper remuneration for their work or the standard to which they complete it may be compromised. Some firms have clearly decided to all but abandon traditional billing methods but how widespread that practice becomes is yet to be seen. After all, traditional billing does seem an eminently fair way of reaching a price for legal services.

These are the latest tactics used by claims management companies (CMCs). The Financial Times has quoted the Ministry of Justice as finding that approximately 25% of claims made by CMCs are made involving ‘improper practices’ (this article can be found here: http://www.ft.com/cms/s/0/e69de7d8-8322-11e1-9f9a-00144feab49a.html#axzz1sI5K1Bfy). These companies are attempting to take a portion of the £8 billion bill that banks and other lending institutions are now having to foot due to genuinely mis-sold PPI. They are doing this by submitting claims on behalf of individuals to the banks and lending institutions. If a particular application is successful, the CMC that the individual has used gets to keep a portion of the compensation money.

The problem lies in the fact that intensive competition has left approximately 900 CMCs battling to submit claims to lending institutions on behalf of customers. In order to keep up with this competition, these companies have found themselves adopting ever more drastic measures to secure custom. Some CMCs are making an estimated 10000 applications every month, and are not even checking whether their customers had even ever taken out PPI. Additionally, these same companies are not even checking which bank accounts their customers hold, instead just sending duplicate claimant lists to different banks and lending institutions on the off chance that someone, somewhere, mis-sold PPI to these claimants.

This sort of behaviour obviously presents the banks and lending institutions with certain problems. Besides being flooded with unfounded applications from these CMCs (which means that these institutions then have to spend a lot of resources to deal with these invalid claims), the banks also have to check every case they receive to see if the claimant even holds an account with them or is a customer.

As well as banks and lending institutions receiving these claims, the Financial Ombudsman Service deals with PPI claims itself, stating that 8 out of every 10 claims it manages have been submitted by CMCs. The Financial Ombudsman Service has highlighted an important aspect of the CMC’s outrageous scandal – their fee structures. Some of these companies have provided it necessary that customers pay upfront based on what the company has predicted that individual will win in compensation. If the claim is then unsuccessful, or the amount of compensation is lower than the predicted figure, the CMC would keep the original payment of the customer.

Other CMCs have even gone so far as to implement double fee structures. This is where the organisation requires an upfront fee, and on top of that also requires the customer to pay a portion of their compensation money as a charge to the company. Evidence of their fee structures really does shed light on the motives behind many CMCs (although do note that those CMCs that do comply with stringent compliance checks are providing a valuable service).

The Ministry of Justice has put together a team to investigate into bank’s complaints concerning CMCs, and the results the team has found so far do little to alleviate banking and public worry.

The phone hacking by the employees of the ‘News of the World’ scandal has made an impact on the UK as well as globally. Claims from the victims were coming from everywhere: from celebrities and politicians through to members of the Royal Family to victims of crime. It resulted in the newspaper ‘News of the World’ being shut, the Leveson inquiry into the hacking being put in place and Rupert Murdoch’s company News Corporation facing a difficult future.

The figures

The official figures show that the hacking scandal has already cost Murdoch’s empire around £240 million. The company has paid £55 m in legal fees and investigations for the final quarter of 2011 alone and £68 m in the previous quarter. £23.7 m has already been set aside to pay for the victims’ civil claims and legal fees and there might be more to come. Further costs include the amount spent on closing the News of the World and covering the loss of publishing rights for the newspaper.

The victims

The scope of the hacking is already shocking, with allegations of hacking to phones and voicemails of actors Sienna Miller and Hugh Grant, singer Charlotte Church, British soldiers, former footballers Paul Gascoigne and Garry Flitcroft, former deputy Prime Minister John Prescott, 7/7 bombings victims, as well as the murdered schoolgirl Milly Dowler. The act of paying up to seven figures in damages to public figures in settlement of their claims can be seen as an admission of guilt of covering up evidence of the hacking.

Leveson inquiry

The inquiry opened on 14 November 2011 with Lord Justice Leveson as its chairman. Its purpose is to inquire into the practice and ethics of the British press. In November 2011 the inquiry named 51 victims, between November 2011 and February 2012 oral evidence was heard from 184 and further 42 read. The inquiry is ongoing and its conclusions are yet to be reached.

News Corp

The future of News Corp is uncertain: how much over the £240 m will it cost the company to repay their losses? How much public trust does it have after the scandal? The corporation is restructuring with Rupert Murdoch’s son James being forced to step down as a chairman of BSkyB. BSkyB is being investigated by Ofcom to see if it is proper to hold a broadcasting licence. The Sunday tabloid News of the World was closed on 10 July 2011 and replaced on 26 February 2012 by a Sunday edition of The Sun.

The impact of the scandal

The impact of the hacking scandal cannot be underestimated. With new hacking allegations pouring in every day the public have started to think and worry more and more about their own privacy. The scope of the action of hacking into voicemails and emails lead to a lack of public trust and outcry as to the most shocking allegations such as hacking the voicemail of the murdered schoolgirl Milly Dowler. The act of invading someone’s privacy to get a scoop on a good story shows a lack of skills of investigative journalism. Aggression in pursuing a story and a lack of consideration for protection of privacy shows bad journalism and needs to be prevented. The hacking scandal showed that in this day and age a tabloid could have power over people’s lives. However, it is not only News Corp and its employees that are to blame. It is also the readers who expect and pursue shocking news and encourage such behaviour by buying into it.

With the increasing popularity of social media meaning that the vast majority of the population having accounts on social networking sites such as Twitter and Facebook its little wonder that social media has also played a significant role in many law suits of late.

Within the past year alone we have seen numerous legal disputes surrounding activity on social networking sites between employers and employees which brings about the subject of social media policy.

An employer may still find themselves on the losing end of a successful tribunal claim even when a social media policy is in place and has been clearly conveyed to the employees.

In one particular case involving an employee making derogatory remarks about customers on her Facebook page, even though the company employing her had a stringent social media policy in place, it was deemed fair by the court that the employee in question be dismissed for gross misconduct due to her breach of the policy. In this case the employer had the right to dismiss the employee because of the possible effects the employee’s comments could have had on the company’s reputation and relationship with its customers.

However, a second, completely unrelated case shows the fine line between fair and unfair dismissal surrounding the usage of social media in the workplace. This case involves the employee posting comments about her job on Facebook after experiencing a stressful day at work. She had taken measures to prevent public viewing of her posts by adjusting the privacy settings of her account to limit viewing to just her friends but the comments were picked up by two of her managers who then proceeded to report the posts.

Although the employee in this case was dismissed for breaching the company’s policy on social media the employer had failed to fully understand the company policies and disciplinary procedures and had omitted to take into account numerous factors involving the employee including her immediate and unprompted apology, her personal circumstances and her commendable employment record.

The employer was also criticised for not considering the demotion of the employee instead of dismissing her.

So, the moral of this story isn’t just ensuring the implementation of social media policy within the workplace but also ensuring that both the employer and employee fully understand the points within the policy and that the employer can distinguish between cases where a frustrated employee is just venting after a difficult day and where there is risk of potential harm to the company.

Recent studies in the US showed that employers responsible for dismissing staff because of social media activity were, themselves, facing legal action and the employees responsible for venting their frustration regarding colleagues and the workplace on social networking sites were seen as attempting to improve the working environment.

This intended improvement of the working environment by the employee, or concerted activity, is protected by federal law.

It goes without saying that, in the not too distant future, we are likely to see shake ups regarding social networking sites including changes made to privacy policies, more regular privacy audits being undertaken and maybe even a common standard for all privacy applications throughout all social networking sites.

The issues surrounding social networking don’t just relate to the workplace and there is also growing concern on how social media is used within schools and other educational facilities. With cyber bullying becoming such a prevalent problem and with such detrimental effects on the recipient where do the authorities draw the line? The question needing to be asked is whether punishment for such behaviour would mean the violation of an individual’s right to freedom of speech or whether, due to the nature of the activity, the individual has forfeited those rights?

Courtrooms are not known, whether in the UK or worldwide for being venues for hysterical laughter, nor, in many jurisdictions, is there a significant representation of disabled advocates, so a story where these 2 elements overlapped was always likely to be picked up by the worldwide press.

The story revolves around a situation where a well known and highly respected female prosecutor, who also happens to be a dwarf, called a witness in a case. Unfortunately, the witness became overcome with hysteria in court to the point where he started  repeatedly singing songs from Snow White and the seven dwarfs.

Not only was the prosecutor’s case jeopardised but not surprisingly, she too great offence at the insults. In this case, the witness picked on the wrong opponent, the prosecutor in question may be diminutive in size but is known as being a very formidable lawyer and is planning to personally sue the witness.

In short, the story from a local US publication concerns the fact that an increasing number of relatives of dead people are refusing to pay for their burial or cremation – this means the local authorities have to deal with the body and are fighting back by suing the relatives in the small claims court.

Presumably the legal action could only be taken against executors or administrators of the deceased’s estate ? Law is different of course in the US but under English law this is the only basis we can see for such a claim, although if we are incorrect, please do let us know.

Follow this link for the story in full. It seems to us to be a sad indictment of not only economic change, but societal and legal change also.

What do you think ?

Social media law is becoming an increasingly important area of law impacting on areas such as employment law, defamation, privacy, family law and human rights.

Things are moving very fast, as with all things relating to the new digital world we live in. Trends in the legal interpretation of social media activity in the USA are worth noting for the future of English law in this area.

In a recent US study :-

• 43% of businesses have had issues relating to employee misuse of social media at work
• 30% of businesses surveyed have taken disciplinary action against employees relating to social media use
• Both employers and employees are becoming increasingly aware that social media may be a useful source of evidence in court claims, although most are unclear as to where the lines are drawn in terms of what can be legitimately accessed and used in evidence at court.

Two recent cases from the Inidianma and New York states courts indicate that courts are becoming increasingly receptive to social media activity evidence and in particular that as part of the vital disclosure discovery) obligations on all parties in litigation, it is likely to be legitimate for parties to request social media activity evidence from each other, although again, this is unlikely to be total disclosure and the  extent of disclosure in this area is still a developing area of law worldwide.