The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
Lawyers at risk following Priti Patel Speech
Reported by Ellena Mottram
The Law Society was warned that lawyers are at risk of physical attacks if politicians continue to ‘sling insults’ at them. The warning comes in response to Home Secretary Priti Patel’s comments about ‘do-gooders’ and left lawyers.
The remarks follow from the Conservative Party conference where Priti Patel argued that ‘the do-gooders, the left lawyers’, amongst others, were defending the ‘broken [asylum] system. In doing so Patel criticized lawyers who defend migrants and seemed to directly link them with traffickers helping asylum seekers to cross borders.
During her speech Patel also promised that next year she would bring in legislation to stop ‘endless legal claims’ from people who are refused asylum.
In response to Patel’s comments, the Law Society argued the speech ‘undermines a legal system which has evolved over many centuries’ and ensures ‘citizens have access to legal advice and recourse through the courts, and will receive a fair hearing, no matter how their case is received publicly or by government.’
As a result, the Law Society has written to the Home Office asking the rhetoric and the language used to be change as the current language ‘risks leading not just to verbal abuse but to lawyers being physically attacked for doing their job.’
The President of the Law Society, Simon Davis, argued that ‘attacks on members of the legal profession for doing their jobs do our county no credit. Government ministers must be unequivocal in their support for the rule of law.”
The Chair of the Bar Council, Amanda Pinto, also highlighted the dangers of the comments made by Patel highlighting that the comments ‘demonize the very people helping constituents every day, without agenda, simply because they provide a vital public service’.
Solicitors and Barrister who work in the area attacked by the Home Secretary have reported that the language being used by the Government was have the effect of making them feel unsafe for the first time in their careers. Stephanie Harrison QC, has argued that the comments go further than previous Home secretaries criticism of lawyers and the current comments represent ‘a dangerous step further: associating lawyers with abuse of the system.’
In response to the criticism brought by many in the legal secretary a Home Office spokesperson said, “Lawyers play an important role in upholding the law and ensuring people have access to justice, and we are absolutely clear that any form of violence against them is utterly unacceptable’.
However, it appears that one attack has already been inspired by the Home Secretary’s rhetoric. On 7 September a man with a large knife entered a London firm launched a ‘violent, racist attack’ which resulted in a staff member being injured before the knifeman was overwhelmed.
The attack came just days after the comments were made by the Home Secretary in which she argued that ‘activist lawyers’ were frustrating the removal of migrants. Following the attach the firm where the incident took place wrote to the Law Society asking the issue to be raised with Patel, government lawyers, the lord chancellor and the Ministry of Justice to ‘ensure that public attacks on the legal profession are prevented from this point forth.’
Despite these concerns being raised, the home Secretary went on to make comments at the Conservative Party conference where appear to have compounded the earlier rhetoric.
The Law Society has since revealed that it has received reports from other forms reporting increased levels of abuse, threats and hostility’ following the latest comments made by the Home Secretary and the Government.
Court of Appeal depart from long standing rule and allow claimants to receive accommodation costs on top of damages
Reported by Jasmine Cracknell
Last week, the Court of Appeal departed from a 30 year old rule that has, since 2017, resulted in personal injury claimants receiving zero accommodation costs to put towards a new or adapted property. Swift v Carpenter is an important judgement for future claimants who will now be able to claim additional costs for accommodation on top of their damages.
Charlotte Swift, whose leg was amputated after a road traffic accident in 2013, received £4 million in damages in the High Court in 2018, but was denied £900,000 to help towards the cost of suitable accommodation. The High Court were following precedent established in the case of Roberts v Johnstone in 1989, during which the Court of Appeal established that damages for accommodation should be calculated by applying a certain calculation.
The ‘discount rate’ is a key component of this calculation. At the time of the Roberts case, the discount rate was 2.5%, but in 2017 it became negative, changing to -0.75%, and, as of 2019, it has been -0.25% (this negative discount rate reflects the fact that interest rates are not as healthy as they were prior to 2017, which must be accounted for in the damages award, otherwise the damages could devalue.) The problem was that, applying a negative discount rate rather than a positive one to the accommodation calculation resulted in a nil award.
By way of background, the purpose of the accommodation costs calculation was not to reimburse the client for the full cost of new accommodation, but to compensate the client for the annual return they would have otherwise received on that money if they had invested it, rather than spent it on a property or adaptation. Therefore, because a negative discount rate indicates low-risk investments are not producing a return, it would not make sense to compensate the claimant for the loss of non-existent investment income.
Understandably, this caused many solicitors to question the effectiveness of the Court of Appeal’s approach in Roberts and, as a result, there have been calls for the courts to come up with an alternative approach to calculating entitlement to accommodation costs.
It therefore came as a relief to many when the Court of Appeal rejected the approach in Roberts last week. Handing down its judgement on 9 October 2020, the Court determined the Roberts approach no longer produced fair compensation for claimants. The Court assessed a range of solutions, considering how best to ensure a fair amount of accommodation costs could be awarded to Ms Smith, without causing a ‘windfall’ on the estate upon sale of the property, which could be seen as overcompensating her.
The Court agreed the best way to achieve this aim would be to deduct the ‘windfall’ amount from the capital amount needed for the new property (which in this case was £900,000). This would involve calculating the value of the reversionary interest on the property and its market value upon the future death of the claimant. Based on the claimant’s life expectancy, the Court ultimately concluded a +5% discount rate should be applied.
Applying the 5% discount rate to the claimant’s life expectancy gave a reversionary interest of £98,087, which when subtracted from the £900,000, produced an accommodation costs award of £801,913.
Whilst this case is, therefore, good news for future personal injury claimants who should now be able to recover damages for their accommodation needs, the Court recognized the issue was not fully resolved. In his ruling, Lord Justice Irwin accepted that his guidance should not be regarded as a straitjacket to be applied universally and rigidly.
He added: “There may be cases where this guidance is inappropriate. However, for longer lives, during conditions of negative or low positive discount rates, and subject to particular circumstances, this guidance should be regarded as enduring.”
Foreign judges to continue to preside over cases in Hong Kong
Reported by Laurence Tsai
As has been discussed in previous briefings, Hong Kong’s controversial national security law was heavily criticized by foreign jurisdictions contending that it eroded Hong Kong’s autonomy and contained a raft of ambiguous provisions relating to the new offenses and policing powers that could jeopardize the freedoms Hong Kongers previously enjoyed.
A notable clause in the security law provides that the Chief Executive shall designate judges from the existing judiciary to handle national security-related cases. Foreign judges are not explicitly excluded, yet it is unclear whether they shall preside over such cases. The new law has generated widespread concern as to whether Hong Kong’s respected judiciary would remain independent.
Arguments against the inclusion of foreign judges from hearing national security cases arguably rest upon the quality of patriotism. As foreign judges are citizens of another country, they would face a conflict of interest in adjudicating national security cases. In contrast, judges who hold Chinese citizenship are deemed more patriotic and, therefore, will have a better appreciation for the circumstances of Hong Kong. Lord Neuberger, a foreign judge of the UK Supreme Court addressed this issue in 2017. He stated that judges demonstrate their patriotism by an “irrevocable and undiluted commitment to the rule of law”, rather than having the presumption of patriotism afforded to those who hold citizenship.
However, under the security law, the power for the Chief Executive to appoint judges has generated widespread concern regarding the independence of the city’s judiciary. The use of foreign judges in Hong Kong symbolises the territory’s common law roots and the independence of the courts. Indeed, one would wonder what it would mean for the integrity and independence of Hong Kong’s judiciary if foreign judges were prohibited from hearing national security cases. Similarly, resignation by foreign judges could also produce concerns. James Spigelman QC, a retired Australian judge, resigned as a non-permanent judge for reasons relating to the content of the security law.
After Spigelman QC’s resignation, Phillip Dykes QC, head of the Hong Kong’s bar association, appealed to foreign judges not to abandon the city’s highest court in light of the security law, stating that their absence threatened the legal system’s credibility in the eyes of the international community.
Lord Reed, president of the UK Supreme Court, and Lord Hodge, deputy president of the same, will serve or continue to serve as judges on Hong Kong’s Court of Final Appeal. Although there may appear to be a reputational risk for doing so (that is to say, foreign judges or their home state appear complicit in supporting in a system that undermines the rule of law), the statements by the two aforementioned judges suggest Hong Kong’s judicial independence remains untainted.
The UK Supreme Court announced that the Hong Kong Judicial Commitment had recommended Lord Hodge’s appointment and that the recommendation would go to the Chief Executive, and then to the Legislative Council for approval. Understandably, the integrity and independence of the Hong Kong judiciary appear to be under threat.
Nevertheless, the decision to appoint Lord Hodge has been supported by many English judges advocating the need for foreign judges to continue to maintain the independence of the Hong Kong judiciary from the government.