Vol 1 Issue 2 November 2004 Newsletter

Two new members further strengthen the team

Chambers` criminal team has been greatly bolstered by the addition of David Osborne and Richard Powell.

David was called to the Bar in 1974 and has practised on the Western Circuit since 1997, having previously been based in Birmingham. David's most notable cases are R. v MILFORD 2001 2 All E.R. 609 - (inferences from silence), and R. v HOOPER 2003 EWCA(Crim) 2427 - (Child abuse). Additionally David Osborne was called to the Irish Bar in 1986 and is the author of a novel "No Holds Barred". David will continue to practice in Crime, Licensing, Personal Injury and Family Law.Together, both David and Garth Richardson (1975 call) offer a depth of experience and seniority that Chambers has not, until now, been able to provide.

Having led the team of legal advisers in South Devon magistrates' court after ten years as a court adviser in Exeter, Richard joined Chambers as a tenant in July this year. Called in 1989 his practice includes Criminal Law, Family and Childcare, Immigration and Liquor Licensing; areas in which he has lectured to the profession across the country for a number of years. Richard is the author of several practitioner texts on European law, human rights, childcare and sentencing and is currently commissioned to co-author Blackstone's Guide to Youth Court Practice.

Richard is co-editor of Magistrates' Courts' Practice and is an assessor on the Immigration and Asylum Accreditation Scheme. His latest article on the forthcoming changes to Bad Character Evidence in Criminal Trials may be found on our website.

Spotlight on: Michael Berkley

Michael Berkley was called in 1989. He undertook pupillages at the Chambers of Mr
Patrick Milmo QC at 10 South Square, Gray’s Inn, specialising in Libel and at 2 Crown
Office Row,Temple, now Littleton Chambers (Chambers of Michel Kallipetis QC), a
leading Commercial and Business Law Chambers. On completion of his pupillage,
Michael came to Exeter to join Castle Chambers, expecting to give it five years before
he returned to London. Michael became hooked on Exeter, and is said to be the first
barrister in Exeter to have concentrated (against popular advice) exclusively on nonfamily, non-personal injury, civil law. He founded Rougemont Chambers with 3 others in 1997.

Michael was appointed Junior Counsel to the Crown (Provincial Panel) in 2000. He principally practices in: commercial and contract, landlord and tenant (commercial and residential), land law, neighbour disputes, professional negligence, general chancery, Inheritance Act proceedings and complex private Ancillary Relief proceedings involving businesses.

Michael lives partly in Exeter and partly in Wrington, near Bristol, where he has an interest in a stud farm. His association with horses has brought him a number of equine cases which, he says, are always interesting because of the characters involved, as well as the way that they do business - rarely through formal contracts or solicitors, at least to start with! He enjoys cooking and eating out, wine, theatre, travel, tennis and riding.

During his time in Exeter, Michael has had a wide variety of cases: everything from a dispute revolving around coy-carp parasites; two involving fishing vessels; a business selling gnomes; concrete cancer; plenty of negligent professionals and builders, and some very valuable pitches at funfairs. He was recently successful in a CFA case in the Mercantile Court in Bristol, acting for a client against his former accountant. He has been to the Court of Appeal on several occasions with subject matter varying from sparkling children's notebooks to "super-cars" with a very impressive success rate.

Michael comments: "I am very proud to be head of Rougemont Chambers. All our members enjoy being here and each one has their own qualities and specialities. Our purpose when starting Chambers was to provide a modern and approachable set, devoid of the stuffy arrogance so many people seem to associate with the Bar. We have always had a policy of being available on the telephone for informal advice and to accommodate our professional clients in any way they seek, (wherever possible!). I think we have achieved this aim and look forward to our continued expansion."

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.

Clerk's corner: Del's advice scheme

A good friend and loyal solicitor client recently contacted Chambers in respect of an advice service featured in a recent edition of the Law Society Gazette.We decided to look into this. What we found was a website from "Your Personal Online Barrister" offering to answer a question of not more than 300 words on one area of law for a fixed fee of £99 plus vat. Worryingly, there are no barristers named, so a solicitor using the service has no idea of the legitimacy, qualifications or expertise of the provider of the advice. Even more worrying are the terms and conditions, which provide that the replies, which will be consistent with the fee, will not be attributed to individual barristers at all.

You may not all be aware that for some three years, Chambers has subscribed to the scheme operated by the Devon and Exeter Law Society ("DELS") whereby, for a fixed fee of £50 plus vat, a barrister will give advice by telephone on a specific area or question of law for a maximum of 30 minutes. The benefit of this scheme is that the advice will be given by the barrister of your choice, whose pedigree is known and who is covered by Professional Indemnity Insurance. Those who use this service find it invaluable and use it time and time again.

Employment update

Statutory In-House Procedures
October 1st has now passed and we have seen significant changes come into effect. The new statutory procedures (disciplinary / dismissal and grievance procedures) are now in force. Non-compliance with the disclipinary / dismissal procedures will result in dismissals being deemed automatically unfair and awards of compensation may be varied by between 10% and 50% in favour of the nondefaulting party. Employees who fail to use the statutory grievance procedure will be denied access to tribunals until this is done.There are new provisions dealing with extension of time limits to enable internal procedures to take place. ACAS has issued an updated Code of Practice to take account of these changes (www.acas.org.uk).

Tribunal / EAT Procedures
Amendments to tribunal procedures have also come into effect, involving significant changes in respect of case management, striking out and costs (The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004). The EAT rules have also been amended with effect from 1st October (The Employment Appeal Tribunal (Amendment) Rules 2004).

Disability Discrimination
Amendments to the Disability Discrimination Act 1995 have also come into effect (Disability Discrimination Act (Amendment) Rules 2004). There are new definitions of discrimination. `Direct Discrimination`, less favourable treatment on grounds of the disability, does not carry the defence of justification. `Disability Related Discrimination`, less favourable treatment for a reason related to the disability, can be justified. The justification defence is abolished for failures to make reasonable adjustments. If a reasonable adjustment is not made, the employer is now liable.A new, formal definition of harassment is also introduced and DDA protection now extends to partners (and prospective partners) of firms, barristers, pupil barristers and the police. The small employer exception,previously set out in Section 7 of the Act, has now been abolished.

Employment Relations Act 2004
Certain sections of the Employment Relations Act 2004 have also come into effect. Section 37 replaces Section 10 of the ERA 1999 and extends the role of representatives at disciplinary and grievance hearings. Section 38 extends the jurisdiction of the EAT to cover appeals from claims brought for breach of the right to allow a representative at disciplinary and grievance hearings (filling the previous lacuna). Sections 29-32 introduce the right for workers not to be offered inducements not to join a trade union and extend protection against suffering detriment on trade union grounds.

Equal Pay
There have been two minor changes to the Equal Pay Act (Equal Pay Act (Amendment) Regulations 2004). Firstly, tribunals may now decide whether work is of equal value without first obtaining a report from an independent expert. Secondly, there is now a strong presumption that where a job evaluation study has allocated different values to the man and the woman`s jobs, then the man cannot be a valid comparator.

National Minimum Wage
Finally, the National Minimum Wage has increased to £4.85 per hour in respect of those aged 22 or above, £4.10 per hour in respect of 18-21 year olds and £3.00 per hour in respect of 16-17 year olds over school-leaving age (with the exception of apprentices).

Forthcoming Articles
In the next edition of this newsletter, there will be a focus on TUPE and on the new Information and Consultation Regulations which will begin to come into force for large employers in April 2005. Full details of both the recent and forthcoming changes in employment law can be found on Chambers` website (www.rougemontchambers.co.uk).

Discriminating schools

A Plymouth schoolgirl with sight impairment who was excluded from work experience was discriminated against and this could not be justified by the school under s.28B(1)(b) of the Disability Discrimination Act 1995, said Mr Justice Collins in D v S (2004) EWHC (admin). The girl's mother had failed to fill out a medical declaration on a work placement form but the judge agreed that there were several possible adjustments the school could have made to avoid discrimination. For further information, contact John Lloyd, Counsel for the Claimant.

Drink up, please!
The Government is taking steps to abolish licensing law as it affects opening and closing times. Licensees may welcome the greater custom but there may be many unforeseen problems. Local authorities are likely to use entrapment techniques to catch the unwary licensee who unwittingly serves under-age drinkers. There is a defence of taking all reasonable steps to determine the age of the drinker. Solicitors should ensure that their licensee clients put themselves in a position to be able to use it.

Chamber's mediation services grow
The Chambers mediation team is building experience and reputation all the time. Dr Anne Brady, John Lloyd and Ian Millard sit as mediators and also practise as mediator advocates. The advantages of mediation over litigation in some cases are being recognised at all levels.This is especially true where, for personal or business reasons, parties need to keep their relationships intact. Any one of our team could mediate a dispute even without proceedings being issued. Even after issue, matters could be stayed for resolution by mediation. In either case, a legally enforceable agreement is sought.
Contact David Parker for further details.

FAMILY LAW - A few pointers from the judiciary

The Western Circuit Family Proceedings Conference took place at the Great Hall at Dartington on 28th and 29th September 2004. The first day is dedicated to the judiciary alone, some of whom stay on until the second day when the floor is thrown open to a wider audience.

The second day was opened by the President of the Family Division, Dame Elizabeth Butler-Sloss. She addressed the delegates as to her role as Chairman of the newly-formed Family Justice Council. There was also discussion as to another initiative, with which we are well acquainted in the West Country, whereby the District Judge sits with the CAFCASS reporter at the first directions hearing of private law cases, to explore the possibility of early settlement before the parties become entrenched in their views. In the Principal Registry, this initiative has been extended to include the presence of the child at this first hearing, so that the CAFCASS reporter can canvass the child`s views at this early stage. This appears to be going well and we expect it to be extended to the Western Circuit in the near future.

Areas to watch
1. On day one of the conference, the judiciary discussed imposing very short prison sentences of one or two days for recalcitrant parents in contact cases. This is in addition to the anticipated introduction of Community Service Orders and Parenting Plans in such cases.

2. There is likely to be a clampdown on the late transfer of care cases from the Family Proceedings Court to the County Court. Issues should be identified at an early stage and the advice of the designated family judge sought in cases where there may be some doubt as to transfer.

3. CAFCASS is being encouraged to facilitate contact by being more proactive. Examples include monitoring whether contact went according to plan over the weekend and if not, telephoning the District Judge to request an urgent hearing.

4. Unification of the court system under the new legislation - FPC Chairmen and clerks should be working in much closer relationships with family designated judges.

5. Liaison between FPCs and County Courts as to available court time. This initiative is already under way in Cornwall, where the County Court is transferring suitable cases to the FPC for contested hearings.

Landlord and tenant act 1954

Unless you regularly consult your White or Green Book Supplements, you may have missed the new Part 56 CPR. In addition to the changes brought about by the Regulatory Reform (Business Tenancies)(England and Wales) Order 2003 (which of course, inter alia, abolished s25 "counter-notices"), June 2004 brought about important changes to Part 25 procedure: if the s25 Notice indicates that the landlord will oppose a new tenancy, the tenant's application is now to be made by Part 7, not Part 8. Not a fatal mistake, merely an embarrassing one if you make it!
If you wish to discuss any aspect of the new changes, do not hesitate to ring Michael Berkley.

Roadside Breath-Testing

It may have escaped the attention of practitioners that Schedule 7 of the Railways and Transport Safety Act 2003 introduced some significant changes to the roadside preliminary testing provisions for suspected drink or drugs. The main purpose of the Act is to allow testing for unfitness to drive owing to drink or drugs by way of a "preliminary impairment test" (Section 6B) or testing for drugs by way of a "preliminary drugs test" (Section 6C). Implementation of the preliminary drugs testing procedure is dependant on approval by the Secretary of State of a suitable device for saliva or sweat analysis.
The provisions came into force on 29th and 30th March 2004 and with effect from those dates, prosecutions for failing to provide breath specimens under Section 6(4) of the Road Traffic Act 1988 should be charged as failing to cooperate with a preliminary test under Section 6(6) of the 1988 Act, as substituted by the Railways and Transport Safety Act 2003.