Confederation Report (April 2012)

I would like to say hello to all readers of Legal News and Members of the Confederation of South Wales Lawyers. I have recently been inaugurated as president of the Confederation. My name is Gaynor Davies and I have been a member of the Confederation since its inception. As a partner dealing with civil litigation in a small High Street practice, I hope to have a strong empathy with many members of the Confederation.

The purpose of the Confederation of South Wales Lawyers is to provide support and assistance and to promote the interest of Lawyers practising in South Wales. Even before the current economic recession such practices faced comparatively hard times. The difficulties remain and are exacerbated by the LSC reorganisation which includes reducing fixed fees and hourly rates by 10%. We have at this firm been providing LSC funded services since 1992. However, at that time it was a branch office of Huttons Solicitors, not becoming Davies Wilkins until late 1993 and Davies Sully Wilkins in 2000. Despite the changes and the lapse of time there has only been one increase in such LSC rates; this has now been cancelled out. Yet the costs of running the practice have increased accordingly over the years. It is difficult to envisage how practices that are heavily dependent on LSC Funding can continue to survive. 

The advent of the alternative business structure (ABS) may well provide a solution. However in the meanwhile perhaps the way forward is for small firms to loosely bond together under the umbrella of an LLP. This would allow such firms to retain their independence and individuality but give them the opportunity to provide more strength in depth by way of specialisation in their particular areas of law by having and allowing such firms to take advantage of the economies of scale increased size affords. Historically it must be remembered it was the availability of Legal Aid introduced in 1948 which gave increased access to the provision of legal advices and assistance to members of the public. This to a great extent has been responsible for the increase in the number of legal practices and lawyers. This is illustrated not only by the changing face of the solicitors branch of the legal practice in South Wales over the last 20 years but also by the vast changes at the Bar and the perceived affluence of their Chambers. The cutbacks in legal aid and shrinking of its availability in many areas of law will inevitably result in a reduction and loss of income.

I recall that whilst undertaking my Articles at Dolmans between late 1987 and early 1990, as a mature graduate and following completion of the LSF, the Lord McKay of Clashfern, the then Lord Chancellor was quoted as stating “the day would never come when the opportunity to obtain legal advice under the green form scheme (now Legal Help and Help at Court) from a Solicitor would be denied to the public”. Well, that day has long since passed and too many members of the public are being denied such advices because of non-availability of LSC providers and also because LSC Funding is simply not available in many areas of the Law.

Traditionally, of course, the more lucrative areas of law would subsidise the LSC funded work. However, with the advent of the Conditional Fee form of funding, the emergence of claims farmers and referral fees there has been a reduction in profits generated by such work, particularly in the areas of Personal Injury for the vast majority of high street practitioners.

However there has been some redistribution of wealth in that the man on “the Clapham omnibus”, has now become a property owner and has increased personal wealth. This generates opportunities for contentious property Lawyers who become involved in resolution of disputes, preferably by way of mediation, these include neighbour disputes, boundary disputes and, after death, contentious probate matters. These are usually privately funded and/or there is the availability of Legal Expenses Insurance Cover (LEI). Generally speaking it seems far easier to obtain instruction from the LEI provider to act on behalf of their Insured in pursuit of such claims than when the matter is a Personal Injury Claim. 

In addition there does seem to be an increasing acceptance by Legal Expense Insurers (LEI) to allow their Insured their own choice of Solicitors as from the point when negotiations to resolve the claim have failed and proceedings are contemplated in the future. This in accordance with the view propounded in Sarwar -v- Alam a 2001 Court of Appeal case. It seems however that LEI are still reluctant to follow the Austrian case in 2009 namely Eschig -v- UNIQA (C-199/08) in which it was ruled that Litigants should have freedom of choice from the initial investigative stages of the claim. Despite this decision most Insurers do not accept an application by their Insured parties to instruct a Solicitor of their own choice at the inception of the case.

It is worthy of note that Lord Jackson has supported an amendment to Regulation 6 of the Insurance Companies (Legal Expenses Insurance Companies) Regulations 1990 which has been interpreted as giving an Insured Claimant the right to choose their own legal representative only once proceedings have been issued. Lord Jackson in his Report gives support to the view that there should be an amendment to Regulation 6 to provide a Litigant with freedom of choice at the point the letter of claim is sent. These recommendations are likely to assist the high street practitioner and hopefully avoid the necessity to refer longstanding clients to Panel Solicitors.

Lord Jackson also gives support to the continuation of LSC Funding and states that: “I do not make any recommendation... for the expantional restoration of Legal Aid.. I do, however, stress the vital necessity of making no further cut backs in Legal Aid availability or eligibility”

Lord Jackson also of course proposes the end of the recoverability of success fees and ATE Insurance Premiums which puts forward proposals which will deny Defendants recovery of their costs in PI cases. With the uncertainties as to the availability of funding the future for Lawyers is uncertain. 

Indeed, who knows what the future holds for members of the legal profession it seems that our earning capacity and terms and conditions of engagement have fallen well below that expected by other professions. However it is a sad day when members of the public are denied access to legal services because of financial constraints and unfortunately this is becoming increasingly the case.

It is hoped that the Confederation of South Wales Lawyers will continue to be able to assist in the development and support of the legal profession in South Wales and also to provide a voice through Legal News. In addition the provision of accredited continuing education is vital to the Confederation’s economic sustainability and growth and it is hoped that members will continue to give their support in the future with an extensive programme planned for the Autumn.

There is of course an opportunity to relax and forget the troubles of the day at the planned Summer Party which will be held at the very hospitable and amenable New House Hotel on 28th September 2012.

I now take this opportunity of thanking my predecessors namely Roger Jones of Merrills Ede Solicitors, David Dixon of UCC Cardiff and also Mr Simon Mumford who now has the opportunity to escape to his beloved Pembroke. In addition to being past Presidents of the Confederation of South Wales Law Societies, all have also been Council members representing Welsh Lawyers at Chancery Lane. It is then with some trepidation that I follow in their shoes but look forward to seeing the difference, if any, a woman’s view will bring to the role.

I feel I must give thanks on behalf of the Confederation of South Wales Lawyers to Mr Geraint Williams formerly of the Cardiff office of the Law Society was taken the opportunity to change career and provide training to lawyers and support staff throughout Wales. We wish him every success and thank him for his immense support and his good company over the years.

The AGM of the Confederation of South Wales Lawyers was held at the Law Society offices on 17th February 2012 and I hope all at the AGM enjoyed the celebratory cake - tip of the week must be, as all bakers will know, the difference between a roulade and a sponge is, of course, flour!  (the cake was excellent –Ed). If you wish to know the secrets of the perfect chocolate ganache, watch this space.

Finally I would stress the importance for the provision of continuing access to legal Services for members of the public, a role which is currently filled not only by the large city Firms but also by the small high street practitioner.

As a Miner’s daughter, one Ivor Jones of Wattstown in the Rhondda Valley, I like many other inhabitants of the mining communities are well aware of the importance of LSC funding. In its absence it is unlikely that respiratory disease, noise induced deafness claims and VWF claims would have been successfully pursued. With the removal of LSC Funding for such cases an already unequal playing field has been rendered more so.

It is important to avoid the elitist attitude illustrated by the politically isolated and overindulged Marie Antoinette who reportedly, and is probably misquoted as stating “let them eat cake” when the peasants were forced to take drastic measures resulting with the French Revolution of 1789.  Whilst the concept of the 3 Courts Walk to be held on 26th April is admirable, i.e to raise funds for the voluntary sector supposedly in conjunction with, rather than as a replacement, for Legal  Aid, it should be rememberd that lawyers too have financial obligations and deserve to be paid for their services. It is unfortunate that funds for the provision of Legal Services have to be raised in this way and is a backward step historically. Whilst too much cake is not good for you it is nice now and again and it seems that most lawyers are not getting their fair share of the economic cake.

Having said that, I wish all walkers well having participated previously myself.

 

Gaynor McCann Davies
g.davies@daviessullywilkins.co.uk

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