The small matter of fees

I know we’re not supposed to mention fees. It’s crass to talk about money – that’s what clerks are for and all that.

But now, it seems, we are expected to keep calm and carry on without any expectation of prompt payment of fees at all. An unspecified amount on an unspecified date. Many legal aid lawyers would say this has been the case for a long while now, so erratic is the legal aid payment system, but at least there was a process and a rule book. And in fact FAS claims, at least, were reasonably efficient.

Now, as a result of the hacking of the Legal Aid Agency’s systems, they can’t see how much we are owed, can’t accept new claims, and can’t pay us. For an indefinite period of time, now acknowledged to be the situation for the foreseeable future. Here’s the message we all got last week:

It is unlikely that all services will be fully resolved in the short-term. As such we are now refining further plans for contingency, in the event that the need for contingency continues beyond this month. We will work closely with representative bodies to ensure this supports providers and their clients to the maximum extent.

          We will maintain our focus on ensuring access to justice, and that providers can be confident in their payment for work done.

Brilliant.

As the extract above notes, there is a ‘contingency scheme’, apparently soon to be ‘refined’. But as it stands, this scheme invites participants to accept payment of a weekly loan equating to 25% of an essentially arbitrary figure (calculated from the amount we received in the 3 months prior to the hack, which given the lumpiness of most of our incomes is truly meaningless), which might be called back in within 2 weeks of the system being back online, at a time when presumably the LAA will have a massive, humungous and ginormous (etc) mountainous backlog of claims to process, with elongated payment times as a result. The process of reconciling the amounts paid against the claims once they come in is likely to be nightmarish. We don’t even receive a remittance for the contingency payments so it is easy to see there will be all sorts of antics and problems with this.

So for now it’s a choice between frying pan or fire (the third route is eyewateringly expensive commercial debt loans which I know some colleagues have preferred, which tells you something). Either way, the risk – and cost – is entirely on us. Don’t claim and risk not being able to pay our tax bills, mortgages etc. Or claim and risk being unable to pay them later because you are caught up in the backlog and / or in an interminable tangle of reconciliation and recoupment… or pay high rates of interest as a result of our default … but obviously, do please keep on working without complaint even thought we can’t give you any guarantees about payment at all. They didn’t actually say that out loud, but that is presumably what this coded message is intended to mean:

We will maintain our focus on ensuring access to justice, and that providers can be confident in their payment for work done.

Are you confident?

What other industry would have people working on a ‘we’ll pay you when we can if that’s ok’ basis? And a ‘we’ll borrow you some money and claim it back when we feel like it too’ basis? That isn’t even the worst of it. If and when we ever do get paid it’ll be at rates that haven’t been increased for over two decades. And while we wait for a solution, you can be sure that another arm of the government, HMRC will be ruthlessly efficient in expecting us to pay tax promptly even as our income stream has dried up entirely, apparently unable to appreciate that life at the bar is an unbreakable cycle of robbing Peter (Peter being the savings you have diligently put by for tax) to pay Paul (Paul being your mortgage, which you can’t pay because your aged debt with the LAA keeps getting bigger but nothing is coming out the other end).

I’m not especially grumbling on my own behalf, though it is somewhat anxiety inducing and is making it very difficult to plan things – holidays and home maintenance projects depend on being able to project your likely income – always difficult at the bar, but now utterly impossible.

No, I’m thinking more of the junior end of the bar, those who have been on maternity or off sick and need to get earning, and those who were planning a retirement soon, for whom this will cause very real problems. Anyone who doesn’t have a stash of savings or a private client practice to cushion them in forthcoming months is going to have to continually weigh up the risks of opting in to the contingency scheme or not.

I’m pleased that the FLBA and Bar Council are working really hard on behalf of all of us to encourage the LAA to sort out the mess, and I dare say the contingency scheme existing at all is largely down to their swift response – but the reality is that this sort of IT problem can’t be resolved quickly and the current contingency arrangements are not hugely reassuring or satisfactory for many. There are hints in the LAA emails of ‘further plans’ if the outage goes on much longer, but what those might be is anyone’s guess. Something that places the risk and additional costs in the lap of the party who is unable to meet their obligation to pay for services rendered would be a good start.

Anyway, I’m off to get an early night before another week of undertaking a legal aid trial, some of it away from home. Which I might get paid for in 2026, if I’m lucky, Perhaps the hotel and train company I’ll be using to get there and stay there won’t mind if I offer to pay for my room and ticket at some unspecified later date?

Remembering Mr Banks

I know some would say I have a tendency to overshare, but I’m afraid it’s hardwired, so look away now if that sort of thing makes you feel uncomfortable.

There are some things I haven’t shared though. The last few years have been…complicated at home. You will have seen oblique references to it here

The Beacon

and here

What are we doing with our lives?

In September 2022 dad had a stroke. He had been caring for mum (to a far greater extent than we had realised because they hid the full extent of it from us, not wanting us to be worried). We took over from him, caring for mum at home for about a year until she moved in with us and the family home, now unoccupied and sad, had to be sold. And then Mum passed away in March last year. The two posts above relate to that period of selling the house and dealing with my mum’s death. In May this year dad passed away too, after a pretty awful last month. We buried him last week.

It’s been a lot (and I haven’t even told you the half of it – some of the events of the last few years still remain private or not stories for me to tell). And in the words of the BFG, I am a norphan. I don’t know if you be a norphan at 50, but it suddenly feels very lonely and exposed. Mum and dad were always there to catch us when we fell, and to patch us up.

But if posts have been a little thin on the ground in the last couple of years its not just been because I’ve been busy (I have), but because I write about what is on my mind (had you noticed?) and mostly what has been on my mind and in my heart is the sadness of losing my parents, something which has been with me continuously since, well, since covid when mum first got ill.

Keeping things together at home and at work has been difficult to say the least, and some of you will have seen me have a moment, or listened to me drone on about the current crisis. Thank you. One of the reasons I wanted to come here and talk about this is because I know there are many others going through something similar, particularly people of ‘my sort of age’. And I know a number of you are dealing with similar but different crises with children, spouses, siblings, marriages. All of them hurt, all of them make our hearts ache. So I’m waving to you. Sometimes drowning, but mostly waving to say ‘Hi, I know what it’s like.’

Obviously, family crises of one sort or another and the fall out from them are the main subject matter of our working days, and in our clients we regularly meet people in the midst of such crises. But every day when I go to work I remember that any one of my ‘opponents’ (or the judge, or witness) may also have their own personal sh*tstorm going on at home, which doesn’t stop when they are at work. The kindness that people have shown me when I have shared has been so important. And I think that politically (small p) its also important to say out loud that these are the sorts of things we are having to juggle alongside our daily diet of abuse, trauma, addiction, conflict and loss – and if wellbeing is to mean anything it has to acknowledge that impossible combination.

But I actually came here to tell you something about my dad – because whilst his death is the source of much of my grief, his memory and the things he taught me and passed on through his genes are the source of my strength (and possibly some of my more irritating characteristics).

My dad was a bank manager. He used to tell a joke about a bank manager with a glass eye, and how you could tell which one was the glass one because it had a glint of human kindness. I never really understood it, partly because it was a terrible joke told badly, but also because my dad was a bank manager who was kind, so what other sort was there? In my memory my dad was a bit like a real life Mr Banks. He was nothing like the other bank manager I remember from the television of my childhood, Mr Mainwaring (though he did often recite the line ‘don’t tell him, Pike!’).

He was benevolent, prudent and careful and played by the rules. He taught us how to count up loose change by making neat little towers of ten, he taught us that if a job was worth doing it was worth doing well, and when baking a cake he would follow a recipe with precision to the second and to the milligram, resulting in exceedingly good cakes. But he also flew kites with us and sung supercalifragilisticexpialadocious with us. He would parade around like John Cleese doing the Ministry of Silly Walks, put on silly voices from the Goons or Hancock’s Half Hour, reliably and intentionally fail at reciting ‘I’m not a pheasant plucker…’ when we taught it to him as teenagers, and told terrible jokes (right up to his last weeks).

Dad was a perfectionist, whose determination to avoid a wrong decision sometimes paralysed him so that he couldn’t break out of the thinking and research stage to make any decision at all (he once took 3 years to choose the ‘right’ kitchen table after the completion of a large kitchen refurb project). He was determined, and most of the time that determination bore fruit. He would tell tall tales of postwar hardship (‘we used to cut a sausage in four for our sunday roast’), of school brutality, and how the teachers made clear that boys ‘like him’ would come to nothing, His father wanted him to ditch school and go out and get a job at 15, but he argued the point and stayed on. And at 16, with less than the minimum required O levels he somehow secured a post at the bank (being taken to one side by a Mr Mainwairing type at the end of the first week and told to replace his school blazer he was wearing with a proper suit using his first paycheck). As a young man in the bank he was sent to elocution lessons to get rid of his Somerset burr (only partially successful) and he studied to pass his banking exams (including a bit of land / mortgage law, which he could still quote back at me when I later went to law school) and was given promotions and a substantial lending discretion. When he described his job it was wisfully, and he sketched a role that was all about relationships and reciprocity, about understanding the needs of the customer and their business, and lending in a way that was right for the customer as much as the bank. He hated the targets and management speak that were taking over by the time I was a teenager, and would not compromise on those principles of integrity in lending. He would come back from meetings with flipcharts and training events fuming, frustrated and dejected. When I think back to dad’s venting about the wrong turn retail banking had taken he was a canary in the mine before the crashes and PPI scandals that would follow. I know also that he felt the responsibility of earning enough to support his family very keenly, and so staying was his duty. He took early retirement in his fifties, probably a blessing in disguise.

Dad was always up for a new challenge – seeking excitement and thrills in moderation – he took up a voluntary post as a ships purser on a schooner, which somehow involved manning the crows nest as lookout, he liked to drive fast (but always in accordance with his advanced motoring training), he took up gliding and bought a suzuki bandit (though he later got the fear of both), and bought an open top ‘sports car’ (well, a sporty car, an MX5). He carried on learning through the Open University, although he never quite had the confidence to finish his degree, which he later regretted. When I was about fourteen we took up bellringing together, spending many happy evenings together trying and failing to ring something more complicated than we could manage, and in due course we had three generations of us ringing together. He was still ringing with us in the weeks before his stroke.

In every aspect of his life dad behaved with kindness and generosity to others – especially his unconditional support of his family, but also his friends, customers, his community. He got involved and gave his time to all sorts of different community groups and organisations – not just the bellringing, but he acted as treasurer for several charities and local clubs, and in his 70s he trained as a Community First Responder. If he could help he would.

But dad’s strengths were also sometimes his weaknesses. He got frustrated when he couldn’t achieve something through logic or persistence, struggled to understand when he saw people ‘give up’, and became quickly incandescent when he lost something (I might have inherited that last one). He struggled sometimes to see other people’s point of view where logic told him his was right, which could lead to clashes. And he never accepted his inability to overcome the effects of his stroke and the resulting brain injury, and so his persistence and optimism became a burden not an adaptation.

His kindness, though, never changed. He continued to worry about his kids and his grandchildren and was delightfully proud of us all, especially when we achieved through hard work. Up until the stroke he would read Pink Tape, and make a point of letting it be known he was following, and the news I was going to be appointed King’s Counsel buoyed him up when he was recovering from the stroke. He knew that, for me, being a lawyer was a lot like being a bank manager was to him, and that although bankers and lawyers are often characterised as venal, both were about helping people when done properly (see also jokes about lawyers and sharks). Although he couldn’t make it to silk day, I tried to involve him in it by taking the crazy costume to him in his nursing home. Making him happy was one of the main reasons I applied (and tried again and again until I bloody did it). I owe my appointment to his determination as much as my own, and so I treasure this picture.

(Thanks Jo Martin KC, this is your wig!)

Mea Culpa – a rather belated clarification

Some past version of me wrote a blog post in 2019, which someone recently reminded me of. It said that the family court can’t order seizure of a device. Oh, I said glibly, I must have written that before the creation of the family court in 2014, because that definitely hasn’t been the case since then.

Except now I check, I wrote it in 2019. And the court definitely had those powers in 2019, by virtue of s31E Matrimonial and Family Proceedings Act 1984, as clarified by Re K, and FPR Part 20:

20.2 Orders for interim remedies

(1) The court may grant the following interim remedies –

(a) an interim injunction;

(b) an interim declaration;

(c) an order –

(i) for the detention, custody or preservation of relevant property;

(ii) for the inspection of relevant property;

So, what did I actually say?

The Family Court itself has no obvious realistic mechanism at its disposal to seize, download and analyse the contents of a digital device such as a smartphone in the absence of a criminal investigation in the course of which the police decide to (and are able to) secure a device for download. The Family Court’s powers are simply powers of disclosure of material already obtained by the police…

That first bit isn’t quite right. It muddles ‘realistic mechanisms’ and powers. I went on:

…although the High Court has a power to order seizure of a device or records, there would inevitably all sorts of logistical problems with securing orders before data was destroyed or ‘lost’, identifying the person responsible for seizure of the device and persuading the legal aid agency to fund the download and analysis of the data. Realistically this is unachievable – if the police haven’t already done the legwork it ain’t gonna happen. And in most private law cases the legal aid rates are already unsustainably low (they are far lower than care cases), making the idea of an advocate trawling through tens of thousands of pages on the off chance for no fee very unappealing – and arguably even more unattractive for a privately paying client. Even in care cases there is no fee for this work, but the hearing fees are less awful than in private law cases.

In my defence, I *think* I was talking about logistics as much as law, and may have had in mind private law proceedings where the practicalities and funding constraints applicable usually mean that what is theoretically possible is not achievable in practice – or perhaps even that this is rarely achievable for anyone except the local authority in public law proceedings (because usually such an application requires the provision of replacement phones, which only the LA has funding to be able to provide). But if that was what I thought, I didn’t express it clearly.

It is also possible, given the reference to the High Court, that I (wrongly) thought only a s9 had the power to do this, and the process of getting a case before a s9 might tip off or allow time for destruction or disposal of evidence. I suppose, being kind to myself, that I would not have been the only lawyer not to have been fully on top of the full scope and boundaries of the powers of the Family Court before Re K in 2024, and I rather suspect that the practice was probably that only a s9 judge would have dealt with a seizure application.

Trying to put myself back to 2019 (before covid so in that era where many judges and lawyers were still paper based), I think it was relatively unusual for phone data to be obtained as a result of a family court directing someone to give up their phone, rather than by consent or by means of seizure and onward disclosure by the police. It was also a period where the volume of phone download data was vastly increasing, and doing so faster than people’s IT skills or hard drives could manage, and none of this work was paid (that bit really hasn’t changed, it’s just got worse). It just all seemed a bit of an unmanageable mess.

Past me did wisely caveat what I had written with this:

Below follows a blog post I wrote on the train back from a trial in Plymouth, highly stressed, badly fed and sleep deprived. It may be a little jumbled but I wanted to get it out before the moment passes, and I don’t have the time or energy to polish it, so please be forgiving…”

I clearly felt I needed to get it off my chest. I probably should have had a good night’s sleep instead. Now six years later, having just pontificated about owning your mistakes in my most recent post (and having spent a decade banging on about transparency), I feel compelled to get my error off my chest.

I suppose this is also an excellent opportunity to remind any readers that none of my blog posts are intended to contain legal advice. But insofar as they contain useful information I do like to try and make sure they are accurate and not misleading.

So, here you are, mea culpa.

You can read the original blog post here. Or maybe just read FPR 20 and Re K.

Police Disclosure into Family Court cases – including sometimes phone and device downloads