Vol 1 Issue 1 July 2004 Newsletter

Chambers goes from strength to strength

On 6th May 1997 Rougemont Chambers was born.

Four barristers already practising in Exeter together with David Parker who had been clerking in Exeter since 1989 set up practice out of two rooms in Barnfield Road, Exeter.

Seven years later, Chambers now has 11 full-time practising barristers, one pupil barrister with a confirmed tenancy, 6 door tenants and 3 clerks. Chambers moved to 8 Colleton Crescent in 1998 and acquired additional space doubling their accommodation again in February 2004.

Michael Berkley, the founding Head of Chambers who leads the commercial team comments, "From the start, Rougemont Chambers committed itself to providing advice and advocacy of the highest quality across all aspects of civil, family and criminal law". This commitment together with business ethos of always putting the customer first has seen Chambers flourish and grow".

David Parker heads up the clerking team with Lisa Kelly and Anne Phillips assisting him. Details of members of Chambers and their areas of practice can be found on Chambers website www.rougemontchambers.co.uk. If you would like David or Lisa to visit you to discuss how Rougemont Chambers can work for you then please give us a call.

Changes in public funding

Criminal practitioners will be aware of recent changes to the type of work eligible for public funding. This month sees even greater restrictions placed on publicly funded asylum work. In future firms offering asylum work paid for at the public expense will face significant time restrictions on case preparation.The justification for these changes is to be found in the government's concern over so-called abuses of the legal aid system. As one MP recently asked, "Is this the first government to identify a serious abuse of process and try to solve the problem by removing the process rather than abuse?"

Immigration and asylum accreditation scheme

Firms wishing to offer publicly funded immigration and asylum work will need to take steps to ensure their caseworkers are accredited under the Immigration and Asylum Accreditation Scheme. The first round of examinations and assessments are due to take place at the end of June with further rounds in September, December and March. By April 2005 the scheme of accreditation will be mandatory. The only course provider in the United Kingdom is CLT and applications for registration should be made at the earliest opportunity. Richard Powell is an Immigration and Asylum Accreditation Scheme Assessor.

Licensing

The new scheme for the licensing of music, dancing and the sale and supply of alcohol appears finally ready to launch.The regime established under the Licensing Act 2003 requires the publication of local licensing policies. Once these policies are in existence there will be a six-month period during which the Magistrates Courts will continue to administer day-to-day matters under the old regime while the local authority deal with applications for licences under the new.The six-month period looks likely to begin on a date in October or November 2004.This means that by May 2005 magistrates' courts will lose their powers to the local authority over the sale of alcohol although they will have an overall appellate jurisdiction which in turn is to be taken from the Crown Court.We at Rougemont look forward to some interesting applications and appeals in the forthcoming months!

Magistrates' Courts committal for sentence and newton hearings

Problems can arise where a basis of plea put forward by a Defendant differs from the Prosecution version of events. In order to commit for sentence, the Magistrates need to be satisfied that the offence was sufficiently serious to warrant such a step. When faced with a guilty plea with disputed facts, the following procedure should be followed.

1. Determine whether the court would, on either version of events, have sufficient sentencing powers. If so, the magistrates' court should retain jurisdiction over sentencing. Account should be taken of the discount to which the Defendant is entitled by virtue of the guilty plea.

2. Where the basis of plea, taken at its best, including the appropriate credit being given for a guilty plea, discloses that the magistrates` court would not have sufficient sentencing powers, it should commit the Defendant to the Crown Court. It is then for the Crown Court to decide if a Newton Hearing is necessary.

3. If the magistrates' court believes that the decision as to whether its sentencing powers are sufficient depends on which version of events is accepted, it should indicate that the outstanding issues of fact shall be determined by a Newton Hearing.The Magistrates should clearly state that the decision whether to commit will be determined after the outcome of the Newton Hearing. A failure to do so may result in the magistrates` ability to commit being fettered, by giving the Defendant a legitimate expectation that the lower court will deal with the matter.

The next big bang for employment lawyers

On 1st October 2004, major reforms to the law relating to employment disputes, tribunal practice and procedure and conciliation of disputes will come into force. These include:

1. New mandatory dispute resolution procedures;
2. Fixed periods for ACAS conciliation;
3. A revised ACAS Code of Practice on disciplinary and grievance procedures;
4. New tribunal regulations and forms.

The new dispute resolution procedures are the Disciplinary and Dismissal Procedures (DDPs) and Grievance Procedures (GPs). It is likely that in the future, these procedures will be implied into every contract of employment. The DDPs will apply where the employer first contemplates dismissing or taking relevant disciplinary action against the employee on or after 1 October 2004.

The GPs will apply where the action about which the employee complains occurs or continues on or after 1st October 2004, unless the employee has already raised a grievance relating to such continuing behaviour before that date. For employers, the consequences of dismissing an employee in breach of the applicable DDP are that the dismissal will be automatically unfair and that there may be an uplift of between 10% - 50% to the amount of compensation awarded.

For employees, access to tribunals will generally be denied unless and until they have utilised the employer's in-house procedures. There are new, complex provisions dealing with extensions of the usual three-month time limits for presenting claims to tribunals. Use of the new forms will be voluntary from 1st October 2004 and mandatory from 6th April 2005.
There will be new time limits for responding to claims and tribunals will have new powers to issue judgments in default. Practitioners need to be aware of the extension of the tribunals' jurisdiction to award costs. From 1st October, a costs order may be made against a representative in respect of improper, negligent or otherwise unreasonable conduct.
The order may disallow part of the representative`s charges to his own client or require the representative to pay costs to the other party. Such orders may not be made against a representative who is not acting in pursuit of profit.

Tribunal Chairmen in the South West have, under their present jurisdiction, been some of the most pro-active in making costs orders. Dabblers beware!
Full details of all of the new employment law legislation due to come into effect on 1st October 2004 may be found on chambers' website (www.rougemontchambers.co.uk).

New disclosure rules

The Criminal Justice Act 2003 (CJA) introduces new provisions into the Criminal Procedure and Investigations Act 1996 (CPIA).
The rules for prosecution disclosure have subtly changed.There is now no distinction between primary and secondary disclosure. Instead, the prosecution must disclose material which "might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused" (CJA s.32 amending the CPIA s.3(1)(a)).The Defence no longer have to provide a defence statement to trigger secondary disclosure.

The most significant changes relate to Defence disclosure.The requirement to serve a detailed Defence statement has been enhanced. Statements must now include not only the issues that the Defendant takes but also details of why he raises those issues and any points of law that he intends to rely on.The Defence must also update the statement if the time between service of the original statement and the trial exceed the specified period (CPIA s.6B inserted by CJA s.33).This period has not yet been fixed.

The court can now order disclosure of Defence Statements to Co-Defendants (CPIA s.5A inserted by CJA s. 28). Further, the Defence must now give the names, addresses and dates of birth of any witnesses it proposes to call. It must also disclose the names and addresses of any experts that have been consulted even if they are not to be called. Concerns as to possible interference with Defence witnesses have been expressed by a number of eminent commentators, including M. Zander,A. Sanders and R.Young. As a result of their campaigning, a provision was added to the CJA whereby a Code of Practice will come into effect at a future date.

Finally, the new s.6E of the CPIA allows the Court to assume that the Defence statement was given with the authority of the Defendant unless the contrary is proved. It will therefore become increasingly difficult for Defendants to escape an adverse inference direction at trial.

Mombasa, Kenya, by Jenni Wilson

I am planning to take a 6-8 month sabbatical from Chambers to work as a volunteer for a legal aid charity, CLEAR (Christian Legal Education,Aid and Research) in Kenya.The CLEAR project was established by a group of Kenyan lawyers committed to bringing legal aid and education to the poor, oppressed, disadvantaged and illiterate in Kenya. CLEAR currently has two offices: one in Nairobi and one in Mombasa. I visited the Mombasa office in 1999 shortly after its establishment.The CLEAR mandate is threefold:

1. Legal Aid and Representation
There is no established Legal Aid system in Kenya. Criminal Defence Legal Aid is confined to murder cases in the High Court.The result of this, combined with alleged police corruption, is devastating. The Death Sentence is mandatory under the Penal Code for crimes including murder, treason and robbery with violence.Yet cases of robbery with violence are heard by magistrates' courts where there is no legal aid and limited rights of disclosure.
There is no Legal Aid for civil disputes.This can have huge ramifications. A widow will often suffer the theft of her land and home at the hands of her late husband's family members; tenants will often suffer illegal eviction; mothers whose husbands have deserted them are left with no income, no maintenance payments and no obvious means of redress.
Many Kenyan citizens are unaware of their legal rights, much less able to protect them. CLEAR seeks to provide a free advice and representation service, advising citizens of their rights and where necessary representing them in Court.

2. Public Interest Litigation and Legal Reform
CLEAR seeks to use test case litigation as a tool for legal reform. Specific laws that exacerbate the problem of poverty have been identified. Recent cases undertaken by CLEAR include harassment, arbitrary arrests of street children and the Government's refusal to issue ID cards to the homeless. CLEAR is currently bringing a challenge to the mandatory death sentence for robbery with violence.

3. Legal Education
It is vital that Kenyans are educated as to their legal rights. CLEAR operates legal education workshops throughout the country and produces publications in both Swahili and English. I will be spending the majority of my time in Mombasa.The Mombasa office has a focus on Family, Child and Succession Law.
It is hoped that further expansion into the Criminal Law sphere, particularly in relation to identifying prisoners who have been the victim of unfair trials, will be successful. The office also conducts a very successful Education programme. The legal situation in Kenya, in common with many other Third World countries, is sobering. It is tempting to question how injustice and abuse can be conquered in these circumstances. However, organisations such as CLEAR provide a glimmer of hope and the motivation to fight for justice and truth.

Planning and compulsory purchase act

The Planning and Compulsory Purchase Act 2004 comes into force shortly. The Act provides for a number of reforms to make the handling of planning applications by both central government and local authorities quicker and more efficient. There are also provisions to make the planning Acts bind the Crown. The provisions relating to compulsory purchase powers and compensation will liberalise the compulsory purchase and compensation regimes. They support policies relating to investment in major infrastructure and regeneration. The main provisions are:

. regional spatial strategy
. local development documents
. sustainable developments
. local development orders
. declining applications
. major infrastructure projects
. simplified planning zones
. planning contributions
. banning increases of floorspace
. changes to appeal procedures
. three year permissions
. temporary stop notices
. consultation responses
. correction and errors
. crown immunity rescinded
. increased CPO powers
. relevant valuation date
. enhanced loss payments

Orders for the preservation of property and subject matter of proceedings

At a hearing on 27 June 2004, Mr Justice David Steel refused to renew on the return day an ex-parte (or "without notice") freezing order granted by a District Judge sitting at the Torquay and Newton Abbot County Court.

The County Court has a severely limited jurisdiction in respect of freezing orders: the general rule is that it cannot grant one, subject to the exceptions provided in the County Court Remedies Regulations 1991, Reg. 3(3). District Judges do not have jurisdiction to grant injunctions generally unless they have jurisdiction to hear an action (CPR Part 2 PDB ¶¶8 and 11). Steel J held that a District Judge cannot be said to have jurisdiction in a case before it has been allocated.

In this case, and despite the fact that the order granted by the DJ froze funds in the hands of the Respondents' solicitors, the Applicants' Counsel tried to argue on the return day (but not before - he was not previously involved) that the order was not a freezing order. He argued that the funds the Applicants had frozen were traceable funds representing completion monies on a property purchase, and that they therefore had a proprietary interest in the fund. It followed, he argued, that the injunction granted by the District Judge was merely an order for the "preservation custody or detention of property which forms or may form the subject of proceedings" pursuant to Reg. 3(3)(b) of the 1991 Regulations which the County Court would have had jurisdiction to grant.

On the facts, however, (and in particular the wording of the order and the absence of such a claim in the subsequently served and even amended pleadings) Steel J held that the injunction sought and granted was indeed a freezing order and had been applied for and granted as such. Accordingly, the County Court did not have jurisdiction to do so and the order was discharged with costs.

His Lordship went on to say, however, that even had the application been for a 'preserving order' under Reg. 3(3)(b), properly applied for to the County Court, he was of the opinion that such orders should be obtained using, and only be granted subject to, the same procedures and safeguards as apply to freezing orders.
It should therefore be noted that, where a 'preserving order' might bite to affect a Respondent's dealing with his assets in the normal way so as to be an interference with his daily life, great care should be taken to follow the procedures applicable to freezing orders, or at least such procedures as are reasonably applicable to the order in question. Using these dicta, it will be possible to argue that a preservation order should not be renewed on the return day if such steps have not been taken.

The Applicants had failed significantly in a number of the procedural requirements for the obtaining of a freezing order, including a failure to provide affidavit evidence to the District Judge, a failure to inform the Respondents of what had occurred at the ex-parte hearing, a failure to give reasons as to why an ex-parte application was necessary, a failure to provide affidavit evidence at all until a day or so before the return date, a failure to issue an application notice at all, and a failure to provide any sufficient evidence of the likelihood of dissipation of the assets by the Respondents.

These were fundamental safeguards, the absence of which gave his Lordship "cause for concern" and which he found "troubling", and described the situation as "by any standards a most unhappy background to the return date". Take note!

Michael Berkley represented the Respondents at the hearing and will happily give further details or advice should you wish to contact him at Chambers.

Quality assured

Rougemont Chambers in Exeter is proud to announce that it is the first barristers' chambers in the South West (Devon, Cornwall, Somerset and Dorset) to be awarded the Legal Services Commission Quality Mark.

The Quality Mark scheme is designed to recognise good practice management within chambers.The award indicates that chambers comply with the Bar Council's Practice Management Standards and Guidelines which sets standards of best practice for administering chambers. Despite being relatively small and only seven years in existence, Rougemont Chambers has shown itself to be forward thinking and progressive, breaking the fetters that have traditionally held barristers' chambers back.

David Parker, Practice Manager and Senior Clerk said:

"The award of Quality Mark to Rougemont Chambers proves that our ethos of always putting the client (both professional and lay) first, is good for the client and good for our business."

The Community Legal Service state:

"The Quality Mark is the quality standard that will underpin all CLS services, so that members of the public who need legal information, advice and other help can rely on receiving a quality assured service.

"To be awarded the Quality Mark and be able to display the Quality Mark logo organisations will need to demonstrate that they meet the standard required for the type of service being delivered".

Clients of the Family and Criminal teams of barristers in chambers are the chief beneficiaries. Nevertheless it is also good news for customers of the Civil and Employment teams as the process of achieving Quality Mark has improved the way that chambers operates generally and consolidated its business procedures.