Vol 1 Issue 4 Summer 2005 Newsletter

Public access - everyone gains

Following a report from the Office of Fair Trading in 2002, the Bar Council adopted new rules that would allow members of the public to instruct a barrister directly, whilst retaining the existing restrictions on barrister functions. In June 2004 the Secretary of State for Constitutional Affairs gave approval to this change. It came into effect on 6th July 2004.
Barristers undertaking direct access work will only be permitted to do so if they have complied with three requirements:

1. They have been in practice for three years following completion of pupillage;
2. They have complied with training requirements imposed by the Bar Council;
3. They have notified the Bar Council of their intention to do public access work.

By the end of March of this year, eleven of our barristers practising in civil and employment law had complied with these requirements and were able to accept public access work. Two of our clerks have also completed the training course.

The vast majority of Chambers' work will continue to arrive through solicitors and that makes a great deal of sense; barristers are only able to advise lay clients, draft documents or letters and represent the client at any court or tribunal. Barristers are not able to enter into correspondence with opponents, serve or accept service of documents or handle client's money - anything in fact which the Bar Council regards as "conducting litigation."

Solicitors will Benefit Too
Within days of notifying the Bar Council that Chambers were eligible to accept such instructions, Public Access work started arriving. The Bar Council keeps a list of such barristers and when members of the public ask for information, the name of Chambers is passed to them.The clerks are trained to ask pertinent questions of the person calling and in over 50% of cases, chambers decided that the work was not suitable for Public Access. In all of those cases, we were able to pass the matter on to a solicitor who was able to help the client.

Chambers has also had clients passed to it from local solicitors - often cases where the matter is ready perhaps for hearing and where the client had expected to conduct the advocacy themselves, only to suffer cold feet. Another example recently arose when a solicitor realised that there was a conflict of interest within the firm and that they could not represent their own client in a particular case. Sending their client to Chambers for representation was clearly a preferable alternative to sending the client to another (competing) firm of solicitors and running the risk that the client might move all of their work there.

Paul Dyson, senior partner at Scott Richards, comments:
"Like everything in life, the Public Access Scheme has its place.We have found it very useful in situations where quick advice is required on discrete issues. The client can have immediate access to Counsel and the matter can then be dealt with quickly and cost effectively."

Rougemont Chambers is all about providing its clients with timely advice and excellence in representation. Public Access is an additional tool for doing just that. For further information please speak to one of the clerks or visit www.rougemontdirect.co.uk.

Spotlight on: Debbie Grennan

Debbie Grennan specialises in all aspects of Employment and is the Leader of Chambers Employment Team. Debbie grew up in Staffordshire and worked in the Marketing Department of a large national company for a number of years as part of a senior management team. Her responsibilities included: primary responsibility for the company`s corporate image; presentations at all levels, meeting and dealing with U.K. and overseas clients and business development. It was there that she developed an understanding of how industry operates, something she has been able to bring in to her work as an Employment Lawyer.

Debbie completed her LL.B. and LL.M. whilst continuing in her full-time employment. In 1997 she was called to the Bar, as one of the Top 20 BVC students of her year, and having been graded as Very Competent - a tag that has stayed with her throughout her career. Between July 1997 and July 1998 Debbie was pupil to Brian Lett, then Head of Chambers at South Western Chambers, Taunton.

Debbie joined Rougemont Chambers in 1998 with the intention of developing a civil practice with an Employment law bias. Despite being told by various members of the Bar that "there is no employment work for the Bar in the South West," she persevered. As a junior tenant she handled the full ambit of chambers junior work and impressed solicitors in all spheres. As her work developed she was able limit her areas of work and concentrate more and more on her Employment law practice. Debbie now specialises in Employment law only. She is of the view that Employment Law is a constantly developing specialist area in itself which requires specialist Counsel.

Whilst appearing in tribunals from Brighton to Birmingham and Croydon to Truro, Debbie also regularly appears in the Employment Appeal Tribunal.She appears on behalf of both Claimants and Respondents, her Respondent clients ranging from small businesses through to large multinational companies. Debbie regularly represents a number of Local Authorities, with whom she has built up very effective and successful working relationships. After a recent case, she received a letter from her grateful Local Authority client, praising her "considerable skill so clearly demonstrated throughout the proceedings" and "the level of empathy and compassion which she afforded all witnesses."

Debbie also undertakes a large amount of noncontentious work, from drafting contracts, policies and procedures to advising large organisations as to restructures,redundancy programmes and TUPE transfers. Debbie has recently undertaken Public Direct Access training and has already helped a number of clients, by providing advice and assistance with the preparation of the case and / or by acting as advocate during the hearing itself. Some of these have been recommended to use Debbie by solicitors who ordinarily instruct her in any event.

Debbie is increasingly in demand for her specialist Employment law knowledge, advocacy skills and dedication to client care. It is not unusual for her instructing solicitors to race to book her before their opponents do and some solicitors have taken to instructing her as soon as there is any suggestion of a claim being made, in order to secure her services in the event that a claim does proceed. Debbie regularly attends the meetings of the Exeter Employment Tribunal User Group, which she sees as an opportunity to have some input into the workings of the local tribunal and also to see how the tribunal chairman are themselves interpreting the ever-changing amendments to the law and tribunal procedures.

She is regularly asked to give lectures and seminars to firms of solicitors or their clients. Many of these are designed to assist the solicitors` marketing ventures, with Debbie regularly appearing as a guest speaker on various and usually very topical subject areas. In recent months, she has given seminars on matters as diverse as the recent amendments to the Disability Discrimination Act,Trans- Gender / Sexual Orientation Discrimination,TUPE, Data Protection in Employment and Information and Consultation requirements.

Debbie has been determined to build a successful employment practice since first joining Chambers seven years ago. As with anything well built, the practice is thriving and here to stay.

Licensing hots up

The government recently announced the second appointed day for the coming into force of the new licensing regime. New licences issued under the Licensing Act 2003 come into effect on 24 November 2005. Applications to vary had to be made by 6th August 2005, otherwise "grandfather" rights would be lost. Local authorities are currently receiving applications to convert existing licences and to vary their terms.

The trade has generally avoided seeking twenty-four hour licences, much to the disappointment of the national tabloid press. Locally, Teignbridge District Council determined its first contested variation on 6 June.The premises were seeking to extend its license by an additional hour every Thursday, Friday and Saturday with a further hour on Bank Holidays. A number of residents opposed the extension and complained of noise, public disorder and nuisance.

The Licensing Sub-Committee was satisfied that appropriate measures were planned by the licensees to promote the licensing objectives and granted the variation. In other parts of the South-West, District Councils have been starting to list contested variation applications in June and July. It seems likely that a significant number of hearings will be needed before the end of September to deal with the current rate of applications to extend opening hours. Some applications are bound to fail and lead to appeals to the magistrates' courts.

The licensing team at Rougemont has been successfully involved in hearings in Devon, Somerset and Cornwall. If you are looking for representation with experience in the new procedures, give David Parker a call on 01392 208484 for details of our advocacy services.

Richard Powell

Internal disciplinary hearings

There are a number of professional bodies that have statute-based disciplinary procedures. Sometimes the decisions made in these cases become headline news, for example those of the General Medical Council ("GMC") and the Nursing and Midwifery Council ("NMC").

These hearings are very important for the professional concerned as they often involve allegations of serious misconduct. The ramifications of being found guilty can include being removed from a register allowing them to practice, dismissal, a slur on character and possibly, criminal proceedings.

The hearings themselves can be complicated affairs due to the statutory and evidential framework in which they are set. For example the NMC has a number of different committees, one of which is the Conduct and Competence Committee. Currently transitional provisions apply as new regulations are now in force. One recent case before this committee, which lasted for 8 days, involved a nurse who faced allegations of failing to respect the dignity of residents in a care home and improper use and storage of drugs. Although the hearing was before a committee, the procedure is very similar to that of a full criminal trial. The criminal rules of evidence are used and all allegations must be proved beyond a reasonable doubt. In this instance, the nurse had initially intended to represent herself (she was not a member of a union).
The nurse then realised that the matter was far too complex for a layperson to undertake. For example, at the close of the NMC's case there was an opportunity to make a submission of no case to answer on one of the allegations. The nurse concerned had been unaware that such representations could be made at this stage. After the close of the NMC's case the nurse can give evidence and call witnesses of his/her own, following which a closing submission is made. Again for a non-lawyer the examination of witnesses and the analysis of many days of evidence is likely to prove extremely difficult.

Each professional body is different, as are the statutory frameworks that establish the disciplinary committees and set out their procedures. The legislative frameworks need to be interpreted and read in conjunction with any relevant code of conduct, Court of Appeal/High Court decisions, plus the evidential rules and standard of proof, which can be different from body to body. For example, another recent case involved a fireman who had to appear before the Disciplinary Tribunal of the Fire Authority. In this instance, the standard of proof was on the balance of probability and proceedings were more akin a civil trial / employment tribunal than a criminal trial.

In the event of a finding of misconduct, the permissible sanctions are set out in the legislative framework. For example, under the Fire Services (Discipline) Regulations 1985 there are a large number of disciplinary awards that could be imposed, such as a reduction in rank or summary dismissal. A strong submission, tailored to the relevant regulations, could make the difference between dismissal / striking off and some lesser sanction which enables the professional to continue working in their field. The prospects of "success" are significantly enhanced where the client has professional representation from Counsel with the appropriate expertise.

James Bax

Civil partnership act 2004

On the 5th December 2005, the long-awaited Civil Partnership Act 2004 will come into force and will undoubtedly shape the course of family law for decades to come. In order prepare for the act's impact, here is a brief outline of its basic provisions:

1. Registration of a civil partnership (Chapter 1)
Parties must be:
. The same sex
. Not already married / a civil partner;
. Over 18 or over 16 with appropriate consent;
. Not within prohibited degrees of relationship, e.g. parents, siblings etc. Formation;
. Two people sign a civil partnership document in the presence of each other, a registrar and two witnesses at a registry office.
Note that under s.73, a civil partnership is not a legally enforceable contract.

2. Dissolution of a civil partnership (Chapter 2)
Grounds outlined in Chapter 2 are similar to those outlined in s 1(2) of the Matrimonial Causes Act 1973 (but note, do not include adultery):
. Unreasonable behaviour;
. Two years separation plus consent;
. Five years separation;
. Desertion.

3. Property and Financial Arrangements (Chapter 3)
. The law relating to wills, administration of estates and family provision will apply to civil partnerships as well as marriage.
. The various financial relief provisions arising out of matrimonial disputes will now apply to civil partnerships also, so expect issues over pension sharing, maintenance and property orders in the aftermath of any civil partnership dissolutions.

Children (Chapter 5)
. A civil partner will be able to apply for Parental Responsibility.
. Entitlement to apply for residence/contact orders in relation to a child of the family for a civil partner. These are just the very bare bones of the changes that are due to come into force. The Act itself, weighing in at some 429 pages, is vast but certainly worth consulting in order to be fully prepared for the changes arriving on the Family Law scene at the end of this year.

Andrew Worthley

Rougemont Chambers will be presenting a Seminar on the Civil Partnership Act in conjunction with the Devon & Exeter Law Society (DELS) on 12th October 2005 at 2pm. Details may be obtained from the Chambers' Clerking team.

The way to go

Barristers in this region usually practise their advocacy in the main court centres: Crown and County courts; employment tribunals; with occasional sallies to London for the High Court or Appeal Court. But there are two areas of practice where I have found myself, in company with some of the grandest Counsel in the land, in very out-of-the-way places. Town and Country planning can take you to obscure towns and country villages to planning inquiries.

Now, Licensing, under the new regime, takes me and our licensing team to town halls up and down the peninsular. I made a recent trip to the Scilly Islands to make an application for a variation in the licence of a pub under the new licensing regime. I left Exeter soon after 4 a.m. and drove the 120 miles to Lands End where I ate my packed breakfast in the car park at 6.30 before catching the little 8-seater 'plane, which took off from the grass aerodrome above the cliffs, and across the 20 miles of sea to St Mary's, where the airfield, at least, has a tarmac runway but where the approach is over the sea so you think any misjudgement would plunge the precariously tilting 'plane into the rock face.

St Mary's, or at least the Hugh's Town part of it, is like a small village, so I felt that everyone knew I was in town, conspicuous by being the only person in a three piece black suit.The hearing, held in the Old Wesleyan Chapel, felt like one of those westerns, where the god-fearing decent folk gather to chase the bad guys out of town. We were the "bad guys", the pub-owning chain based on the far-distant mainland, seeking to extend our opening hours, so as to disturb the sleep of all those early-to-bed decent folk.

The chair of the licensing panel told me that there was no point addressing him on the law. Of course, he was right since nothing I could say would have outweighed the force of the lynch mob and we were duly denied our variation. Ah well, I thought as I made my way back by 'plane and car to Exeter, there's always the appeal to the local magistrates - or should we go direct to the impartial national authorities (Her Majesty's High Court judges or the U.S. Marshalls?)

John Lloyd

Time limits for employment tribunal claims

In a recent case before the Exeter Employment Tribunal, a preliminary hearing was necessary to determine whether the complaint of unfair dismissal was presented within the 3 month time limit. The limitation period expired on a Sunday. The solicitor posted the ET1 form by first class post on the preceding Friday. It was stamped as received by the tribunal on the Monday, one day out of time.

The rule in Pritam Kaur v S Russell & Sons Ltd [1973] 1 QB 336, (whereby when the limitation period expires on a day on which the court office is closed, that period is extended to the next working day) does not apply if the tribunal office has another means of receiving the claim form.

Quite simply, the word "present" in relation to a tribunal claim is synonymous with the word "deliver." It need only be physically received and no action is required on the part of the tribunal staff. The ET1 form could have been presented by being posted through the tribunal`s letter-box, by being faxed or by being sent via the tribunal`s online service. A two-fold argument was presented to avoid a finding that the claim was out of time.

Firstly, statistical evidence was presented to show that over 90% of letters sent by first-class post, both nationally and in the South West, are delivered on the following day. On this basis, the chairman accepted (on the balance of probabilities) that, had the tribunal office been open on the Saturday, it would have arrived on the Saturday.

Secondly, the tribunal had an arrangement with the Royal Mail that their post would not be delivered on Saturdays but would be held back and delivered on the following Monday. It was argued, on the basis of the EAT decision in Lang v Devon General Ltd [1987] ICR 4, that the Royal Mail was, in law, the bailee or agent of the tribunal for the purpose of receiving claim forms at the weekend.

The chairman accepted this argument and held that, due to the special arrangement for post to be withheld at the weekend, the Royal Mail were bailees / agents of the tribunal and that, accordingly, the claim had been presented in time. Debbie Grennan represented the Claimant. Please do not hesitate to contact chambers if you require further information.