New *particular People

After the ups and downs of 2016, I’m delighted to announce the arrival of new people at *particular, all of whom you may have seen around and about at Campus North (where you’ll find our office upstairs at the far end of the lounge) had you been here over the last couple of months.

Asif Malik joined us as an Associate Solicitor in January. Having qualified nearly 3 years ago, Asif had worked in the early part of his career as a claimant personal injury lawyer. However, he is dual-qualified, having had a previous career as an accountant, so he’s as at home with cap tables and balance sheets as he is with tax and corporate law. Which makes him perfect for corporate finance work and that’s what we’ve hired him to do.

Before accountancy, Asif ran his own businesses and worked for a while as a taxi driver in Newcastle. As a result of which he knows everyone and everywhere in the toon. In fact, he seems to have an encyclopaedic knowledge of the city’s commercial landlords. If he looks a bit tired and haggard, that’s not down to the fact that he’s on a second career and therefore a little more, er, mature than your typical junior lawyer. It’s because his wife recently gave birth to their second child.

Barry Arkle also joined us as an Associate in January. Barry is a Chartered Legal Executive who specialises in dispute resolution – what used to be called ‘litigation’, which, if you’re wondering, is what Harvey on ‘Suits’ does. Most people seem to be familiar with Harvey. Fortunately for us, although he has less hair, Barry is far more friendly than Harvey and doesn’t shout at all.

Barry worked for a number of years in insolvency and so is well placed to assist should you want to close a business before starting another. Or if you have a client who is pleading poverty. For the last few years, Barry has nurtured a specialism in IP, having joined us from Sintons, where he worked alongside Pippa Aitken, our chum who leads the IP team there. Since joining us, Barry has been doing some commercial IP work too, much as I did when joining Watson Burton, all those many years ago. Since Deb’s departure last year, I have been keenly aware that I have been the only, shall we say, ‘seasoned’ member of the team. Fortunately, that has changed with Barry’s arrival, which makes me very happy indeed. Despite this, whilst I get out of breath at the sight of a staircase, Barry can be seen everyday swapping his flat cap for a cycling helmet.

Matthew ‘Dodge’ Donnelly joined us in January as a Trainee Solicitor, having previously worked for us as a Paralegal. He is the first solicitor that we have employed not to have studied at Northumbria University, having graduated from Hull University, a distinction of which he is insufferably proud. He is also a dedicated follower both of pop culture and of sport and, sadly for him, is now the only Mackam in the office.

As a trainee, Matt will be doing a little bit of everything (he has already proven himself quite comfortable with cap tables and the like) and, being adept with this sort of thing, he has been able to persuade the Law Society to knock a couple of months of his training contract (which would otherwise have been 2 years), meaning he now qualifies in October 2018. This because of the amount of time he spent working as a paralegal whilst not travelling around the world. That again being something that he tells us of incessantly. Although most of his stories seem to involve working with Italians on a farm in Australia or drinking unspeakable concoctions in Vietnam.

Amy Gatenby joins us officially on 8 May, although she has been doing unpaid work with us as a work experience person for a while now. She is coming to the end of her studies at Northumbria University, graduating this summer with an “LLM” – that’s a Masters in Law. So like Nick before her, she will actually be more qualified than me, though being the boss, I choose not to put my faith in such things. Amy is working initially as a Paralegal and will be handling our admin as well as more straightforward legal tasks. In November, she will transform magnificently into our next trainee solicitor.

Amy hails from the Teesside Riviera (otherwise known as Redcar) but has chosen to make Newcastle her home. Notwithstanding both of these things, she is a dedicated follower of fashion (and, I hope, fashtech) and writes a fashion-blog that has frankly, far more followers than Deb and I ever managed to attract to particular.pro. Given the subject matter (and Amy’s ability to bring it to life), perhaps that’s not surprising.

The Gettysburg Address (and what you might learn from it)

150 years ago today, Abraham Lincoln delivered the Gettysburg Address.  Just ten sentences and 273 words, it stands as perhaps the greatest example of the power of simplicity, of quality over quantity and of how brevity will always triumph over verbosity.

The Battle of Gettysburg

The Battle of Gettysburg – over 51,000 Union and Confederate troops died at Gettysburg.

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

“Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

“But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

Lincoln took just 2 minutes to deliver his address.  He spoke after Edward Everett, one of the great speakers of the day, had finished his two-hour “oration”.  Everett’s words are little-remembered.  Lincoln’s will never be forgotten.

It seems more than a little crass to associate such an important event as The Gettysburg Address with business, but if Nancy Duarte can do it with Martin Luther King’s “I have a dream” speech, I don’t see why I can’t stress the point again. The best way to get people to remember your words is to use as few of them as you can and to maximise the impact of each and every one.

(There was an excellent piece by Jim Naughtie on the Today Programme this morning about Gettysburg.  You can catch it here.)

 

The Importance of Being There

As I have mentioned before on this blog, I am a regular listener to @BBCr4today.  I find that shouting at arrogant politicians and numbskulled bureaucrats whilst standing before the shaving mirror is a good way to start my day, one of my favourite triggers being “we can’t comment on individual cases”.  Why they let these people get away with that as a justification for avoiding a difficult question I just don’t know.

Over the years, I have picked up on a few things that will lend advantage to anyone participating in a radio debate or interview on a live show such as the Today programme.  In fact, by the time I myself was interviewed by John Humphries on the show back in 2001, I was already a seasoned veteran when it came to listening, having started back in the 80s as a teenager.  And I saw a very good illustration of one of these tactics last week.

On Tuesday 29 January, Today programme grandee Jim Naughtie conducted a debate between Stephen Bell, a cartoonist for The Guardian, and Stephen Pollard, editor of the Jewish Chronicle.  The debate took place after the 8am news, prime listening time.  The event that prompted the debate was the publication by Sunday Time of a cartoon by Gerald Scarfe on Sunday 27th January.  That cartoon was, in turn, prompted by the victory of Benjamin Netanyahu in his country’s general election and depicted Mr Netanyahu building a wall constructed from the blood and bones of Palestinians.  The paper’s owner, Rupert Murdoch, immediately apologised for the offence caused.  Mr Scarfe regretted the timing of the publication, which coincided with Holocaust Remembrance Day.

The purpose of this post is not to continue that debate.  For myself, I do not believe that criticism of Israeli policy in the occupied territories is equivalent to anti-semitism.  I have long thought that to be Jewish and to be Israeli are two different things.  And indeed there is a sizeable minority in Israel who are critical of the policies of their government.  Obviously, that does not make them anti-semitic.  But, strong as our support for the principle of freedom of expression must be, we must aware also of the context within which statements are made.  Mr Scarfe’s cartoon brought to mind the activities of Josef Mengele in Auschwitz.  I am sure that this was unintended, but it was the first thing that popped into my head.  As if that was not enough, for the publication to take place on the day that the world remembered the millions of victims of Nazi persecution was beyond insensitive.

But that’s my view.  What distinguished (if that’s the right word) the debate between the Stephens Pollard and Bell was the way in which attention turned to a cartoon drawn by Bell that Pollard referred to as “the puppet master”.  This cartoon was published in the Guardian earlier in the month and showed Mr Netanyahu on a Likud election plinth with a glove puppet on each hand, one bearing a likeness to William Hague and the other I can only assume from the smile to be Tony Blair.  The quality of the drawing was fine, but the sentiment I found to be somewhat clumsy.  And again, the context must be borne in mind, which is that for centuries, Jewish folk have been regarded as pulling the levers of power, operating in the shadows.  A stereotype that ignores the undeniable fact that for most of the last millennium, the Jewish people have been poor and downtrodden with few friends and fewer rights.  However, the Bell cartoon was intended as a criticism of Israeli policy, not a depiction of the Jewish character, if there can be such a thing.

It was at this point that the debate degenerated into a slanging match, with poor James Naughtie caught in the middle trying to marshall the contestants.  Bell clearly saw the interview as an opportunity to respond to criticism of the ‘puppet master’ cartoon in Pollard’s publication.  Pollard sought to justify that criticism by referencing the old Shakespearian stereotypes.  But Bell held one key advantage.  Whilst Pollard was speaking from a telephone line, Bell was live in the studio.  This meant that Jim found it difficult to control Bell for technical reasons, with Bell railing against Pollard time after time, interrupting Pollard’s responses.

Frankly, I came away from the debate with less sympathy for Bell, finding it ironic that somebody who makes his living from freedom of expression was so unwilling to let his opponent take his turn.  But there was no denying that if you are live in the studio, it is much more difficult for the interviewer to take control.  Even if your mic is turned down, you can still be heard on the presenter’s mic, especially in local radio, where the studios tend to be more compact.  On the other hand, the narrower, tinnier sound that the phone line produces is easily swamped by the fuller sound and greater bass produced by the studio.  And on radio, when two people speak at the same time, it is almost impossible to hear what either are saying.  This meant that time after time, Bell was able to drown out Pollard’s comments.

The debate is still available here for the time being, but whether you get the chance to listen to it or not, the next time you hear a contentious discussion on talk radio with participants joining from different sources (phone, ISDN, studio, etc), have a careful listen to the advantages or disadvantages that those technicalities present.  Participation by phone must always be your last resort.  With a decent broadband connection, even Skype tends to be preferable.  At least then, if you don’t like the way things are going, you can simulate a connection problem thereby giving you a blameless exit from the debate.  The presenter is then under a duty to present your argument for you.

If you can’t get to the studio, get to a local studio so they can connect you by ISDN.  If you can’t get to another studio, see if there is a radio car in your area.  Just do everything you can to avoid the phone.  You’ll thank me for it, as will your listeners, because being there in the heart of the debate is the most important technical advantage you can give yourself.

Born To Do It

Yesterday, the Queen attended a meeting of the Cabinet. “Her cabinet”, as fawning royal reporters described it repeatedly. “It’s her cabinet, so she can attend when she wants” said Eric Pickles, a frequently outspoken cabinet minister.  What he lacks in hair he certainly makes up for in quotability.

There was a lively discussion on yesterday’s Today Programme about how the Queen, in her diamond jubilee year, is considerably more popular than a Government (“her Government”, fawn fawn, grovel, grovel) that, for once, a majority of the population actually voted for.

Why is this? Because she doesn’t actually participate in any of the political action was the suggestion. Not something one could say of the last monarch to attend a cabinet meeting, George III. He attended in 1781 (although there is some debate around whether Victoria did likewise) during the American Revolution. An interesting comparison, since George was known for his meddling in the running of the country. Sorry, “his country”. And provoking the colonials into revolution was one of his less celebrated achievements. All part of his attempt to turn the clock back to a past era of despotism unbounded.

George III was not one of England’s more popular monarchs. He ended his days talking to trees in Windsor Great Park, supposedly. Perhaps they were better conversationalists than some of his cabinet.

So an 18th century figurehead who likes to interfere with the government of the country and is resented for it. A 21st century figurehead who is welcomed to attend cabinet as part of the celebration of her ability to retain a pulse since 1952 – invited precisely because she does not interfere. Am I the only one to see the irony here.

It won’t have escaped those that know me that I am not a supporter of the Royals, nor have I been for my entire adult life. I am that rare thing, a true English republican. Not a communist nor a socialist nor a nationalist. Just someone who believes that life in the 21st century doesn’t sit well with the imposition of a birthright hegemony. And yes, the recent decision to give the unborn child of William and Kate an equal right to accede to the throne, boy or girl, or even (shock horror) should she marry a Catholic (what would happen if she chose to be a Catholic, I wonder?) makes no difference whatsoever.  (It’s something you might like to bear in mind when you read the post I’ll write at some point in 2013 in support of Scottish independence.)

If the Queen doesn’t take an active role in the constitution, what exactly is she for? And at this point in our lives, do we really need someone to sit at the top of the Government just because she was born to do the job? It just makes me think, how can we sit here in our advanced western liberal democracy and deride African dictatorships, middle eastern juntas and the like whilst turning out in our thousands to wave our flags in celebration of a woman whose entitlement to her job is that she is the great great granddaughter of someone who was a cousin to someone who had been dispatched some time before. Or something. Surely it’s time that this job was also appointed on merits basis, subject to our equality legislation, just like every other job in the country?  Pretty much every other job in the country, at least.

But in case, dear readers, you’re concerned that *particular is a nest of vipers waiting to strike down your comfortable bourgeois life, calm your gentle British hearts.  Everything here is in balance.  Much as I would favour the idea of a Boris presidency over the status quo, @particular_deb (my business partner) is as fervently royalist as am I republican.  Indeed, not only does she lead the street party committee and keep the bunting suppliers of northern England in business, would her ultimate ambitions be realised we would all one day be subjects of Queen Deborah.

Now there’s a thought.

The Second Best Newcomer in County Durham

Back to my desk after a glamorous night out.

In case you haven’t heard, we didn’t win. I thought for a minute we were going to when the bloke from Virgin Money said that the winner was carving out a niche in a big market, had ambitious plans for its brand, was doing things a bit differently, etc, but it turned out he was talking about our new chum Sarah Pittendrigh of @SimplyBows.

Well, we may not have won the award but I think we might have won a new client or two. I suspect that will be more valuable in the long run. And besides, I was fully expecting Avec to win. They brought two tables of people so I should think there are a few hangovers at theirs this morning…

Reflections on the Westboro Baptist Church

Cards on the table. I am a fan of Louis Theroux. His ability to draw comic absurdity from the darkest of subject matter as well as the plainly ridiculous, carried out in a manner that leaves plenty of room for the viewer to draw his or her own conclusions.

In 2007, Louis visited the Westboro Baptist Church in Topeka, Kansas. There he found a congregation dominated by one family, the Phelps clan, the patriarch of whom ruled the roost with a rod of iron. The resulting documentary found the same darkly humorous vein Louis had found with the Ultra Zionists, Eugene Terreblanche and others. Last year he returned and the resulting film was broadcast on Sunday night. It is available on iPlayer currently and I thoroughly recommend it.

Louis says he doesn’t do follow ups. However, he had received an email from one of the “firebreathing zealots”, one of the many Phelps daughters who had since left the Church and found her place in the world with a boyfriend, job and home in normality.

One of the many striking things about the Westboro Baptist Church is their espousal of hatred. I grew up in a Christian family and attended a cathedral school and although I call myself a humanist now (like Louis), inevitably a bit of knowledge about the faith rubbed off on the way. John 3:16 for example: “for God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life”. And I was married in a village church in the Dales, and the reading was the classic wedding text, 1 Corinthians 13:13: “So now faith, hope, and love abide, these three; but the greatest of these is love”.

However, the approach of the Westboro Baptist is a radical departure from these texts. Instead, they take their cue from the God of the Old Testament and rejoice in judgments leading to the destruction of Sodom and Gomorrah, and later the flood. Parading at sensitive locations such as funerals, schools and the like with brightly painted placards, they see these judgments reflected in the modern world in the form of AIDS, dying soldiers, and perhaps most bizarrely, breast cancer, references to each being commonly preceded in their signs by the words “Thank God for…”.

In fact, much like the murals of Northern Ireland and Soviet era propaganda, it’s hard not to be impressed by their creativity. Their demonstrations commonly feature not simple repeated assertions of the kind normally associated with the right wing, but complex lyrical interpretations of pop anthems, most notably Lady GaGa’s “Pokerface”, which they accompany with a dance routine. Louis visited the home of Steve Drain, a former film maker who had been indoctrinated during a visit to the Church to film a documentary. Drain showed an anti-semetic skit the Church had put together featuring dancing, singing church members dressed as Orthodox jews complete with wigs and beards. (Typically understated, Louis concluded “even for you, that was surprisingly offensive”.) Sickening as it was, I couldn’t help but hum the classic Hebrew tune to which it was set whilst in the shower on the Monday morning.

One of the things that I noticed was that the church was built on the strength of the women, without whom no documentary would have been possible. And yet at every opportunity, these women deferred to their fathers and husbands. In one interview, Louis was talking to the parents of one 20-something who had left the Church and was now finding her own way in the world. The words that the father used were of Westboro orthodoxy, but it wasn’t hard to see just how difficult he was finding it. And when Louis asked the same questions of the mother, sensing some vulnerability over this issue, three times she effectively said “er, what he said”, and no more.

A community, ostensibly Christian, united solely by hatred was a tragic thing to see. Rather than seeking to build links with the outside world, they rejoiced in upsetting the community in which they built their homes. But the real tragedy – and perhaps the biggest sign of hope for the future – was the effect that the lifestyle was having on the children. Watching a ten year old boy parading with a placard stating “God hates fags” was hard to see. (I also noticed that there were very few males in the film between the age of the pre-pubescents on the picket lines and the fathers being interviewed.) When Louis travelled to see Lauren Drain in Connecticut, the girl who had left the church and emailed Louis to tell him so, he found a 24 year old registered nurse who looked for all the world like she was having her teenage rebellion 10 years too late: heavily made up, scantily clad and apparently angry at her parents and life in general. And yet this was a girl who, in conversation, seemed entirely grounded and who was delighting in the discovery of an ability to make decisions for herself.

But it was when Louis went to see another one of the departed daughters, Libby Phelps, that the poignancy was hard to take. Drummed out of the village for daring to wear a bikini whilst on a beach in Puerto Rico and daring not to repent for so doing, Libby recounted the circumstances of her departure with humility. It was evident that she had not left in an explosion of hate as had Lauren, but rather had simply come to an instantaneous realisation that she couldn’t continue to live this way. The final words exchanged with her mother (by text message) were rooted in everyday normality. She didn’t regret her departure but she regretted the loss of her family. And she found herself convinced in quiet moments that the decision she had taken meant that she was indeed hellbound.

Each one of these departures seem to convince the Phelpses and their various satellite families that they were all the more right, and to speak their bile with all the greater intensity. I suppose it’s a bit like the strength of the coffee left simmering in the pot throughout the afternoon – you forget how long ago you made it and you partake of what’s left at your peril. But the other point I took away was the bizarre juxtaposition of the Church within the local community. This was not a congregation locked away from the world in a Waco style compound. They weren’t located in some wilderness, miles from anywhere. As Louis interviewed the church members in their homes, it was possible to see through their windows the homes of their neighbours, drives bearing VW Beetles and gardens bearing rose bushes. This is a congregation that has decided to cut itself off from the world yet has chosen to locate itself in the midst of suburbia.

Watching church members spit their hate on subjects religious (Islam, Judaism) or temporal (Obama – the anti-christ, apparently – and conversely, the ways in Iraq and Afghanistan), in homes bedecked with fridge freezers, fitted kitchens, microwaves and flatscreen TVs, the strongest message was one of the hypocrisy. And perhaps this was the greatest irony. Because the closest cousins to the Westboro Baptist Church are not the non-conformists from whom they have splintered, but the Islamic fundamentalists, whom they regard as Satanic. Personally, I couldn’t help thinking about the London 7/7 bombers, who worked as shop assistants and primary school teachers, travelling to London listening to their iPods, leaving their Volvos in the car parks of commuter stations, or Abu Hamza, preaching the destruction of Western society whilst living off benefits.

So that was the point. This was a group of people that are determined to cajole the community they lived in to rise up and eject them, so that they could then portray themselves as martyrs. And they did, do, this in the most provocative way – parading before the funeral of dead Iraq veterans with the Stars and Stripes flying upside down (although I didn’t see any evidence of the flag being burnt). But much as they tried, they found merely toleration. Because in the USA, freedom of speech and of association are the values most dearly held.

But here is my own provocative statement. The world may actually be a better place because the Westboro Baptist Church is in it. Because it is in our united rejection of their hateful ways that our liberal democratic inheritance is most evident. Even in Topeka, Kansas, where Democrats are rarer than an English World Cup winner. And because of this, you can follow any one of at least a dozen Westboro Baptist congregation members on Twitter and sample for yourself a little bit of what it must be like to live in a self-constructed world of hatred. It is safe to say that they make better use of Twitter than @Louis_Theroux himself, who still struggles to get to grips with the medium.

Sometimes, it really *is* the fault of the lawyers…

Justice secretary Ken Clarke has announced that there are to be changes to the rules on ‘no win no fee’ arrangements between lawyers and their clients. In case you’re not aware, these are the arrangements that allow “lawyers” (for which, by and large, read the call centres of companies whose revenue comes from the referral of potential claimants to solicitors) to advertise their services as offered at no cost to the prospective client. These arrangements, properly known as “conditional fee agreements”, mean that should a claimant be unsuccessful in his or her claim, they are not required to pay anything to their lawyers for the services rendered. In return, lawyers receive a nice bonus should the case be won.

Shamelessly, Clarke appeared on the Today Programme (@r4today) this week, decrying the fleecing of the NHS and poor innocent insurance companies who have had to pay multi-millions on an annual basis to crafty lawyers. ‘This is not how it was supposed to work’, he shouts, ‘and we’re all paying’. But let’s be clear, it’s not just the lawyers that benefit from these arrangements. There are the Mercedes dealers, the country clubs, the Rolex retailers. And those corporate palaces in the centre of England’s fair cities don’t just build themselves, you know. Honestly, Clarke is supposed to be a business specialist. Isn’t he aware of the multiplier effect? We’re keeping these people in business. And if it wasn’t for no win no fee, daytime TV would be deprived of the majority of its revenue. And what would Trisha do then?

You’d think, given the explosion in litigation over the last decade, that the no win no fee agreements were invented by a Conservative government. Actually they were, but they only really took off in the late 90s when the Labour government decided to do away with Legal Aid for most forms of litigation. By way of compromise for those complaining that access to justice would be denied for those most in the need, who are usually those who are least able to afford a lawyer to advise and represent them, the administration decided that “success fees” earned by lawyers would be recoverable from the losing party. In addition, because of the principle in English Courts that the loser pays the winners legal costs, it was also proposed that insurance premiums charged for covering the risk that a case might be lost should also be recoverable.

Quite possibly, back when these reforms were first contemplated, not even the most optimistic lawyer could have expected the litigation revolution that was to follow. This was because of the innovations that followed.

First, “claims farmers” were allowed to enter the market with glossy TV advertising. Anybody contacting one of these companies claiming to have what looked like a dead cert case was then sold on to the highest bidding firm of solicitors with all the grace of a sheepskin clad football agent approaching the gates of Old Trafford with his arm around the latest wunderkind. This was the reality of access to justice in the post-Thatcher age.

Second, and I still sometimes have to pinch myself about this, the legal expenses insurers came up with a tremendous wheeze. The premiums that clients had been expected to pay for the insurance cover that would eliminate their risk altogether were themselves insured. And the payment terms were that the premium would be paid at the end of the case. If the case is lost, the insurance policy pays the premium. If the case is won, the losing party pays the premium. And then the same companies would provide finance to pay the fees of barristers and expert witnesses and insure those costs too. Lost cases are rare, but you can imagine that the hit an insurer takes when such a case arises is such that the premiums charged are massive. And the losing party, or, more usually, the losing party’s insurer, foots the bill. Oh those poor insurance companies, being fleeced by, er, those other insurance companies.

Given the availability of “legally trained experts” (honestly, this is what one of the present crop of claims farmers purports to offer in its current TV campaign), able to assist anyone with the semblance of a claim with no risk whatsoever AND the guarantee that all damages awarded will be safeguarded for the claimant (this being de rigeur after the scandal of the miners required to pay the referral fees to their claims farmers out of their damages), who can possibly be surprised that the litigation culture spread through England and Wales like swine ‘flu?

So, was this access to justice? Well, not if you were wanting to pursue a commercial litigation or intellectual property claim, where costs remained high but because of the greater number of variables, very few lawyers were brave enough to offer no win no fee agreements. I tried twice and both times had my fingers burned by clients that, how shall I put it, strategically withheld information that, when uncovered at the crucial time, utterly undermined their cases. I never did it again.

And not for the Defendants. Not any Defendants. Not that conditional fee agreements are forbidden for Defendants. It’s just that, if you were to represent a Defendant, how would you go about describing just what constitutes success? Litigation is not a black and white issue but is pursued in shades of grey. And not for two of the key areas of justice for private individuals: family, where legal aid remains, and criminal proceedings, where that legal aid is universal, regardless of means. And in employment matters, lawyers have always been allowed to act in return for a share of the winnings, something that is strictly forbidden in normal court proceedings.

And obviously, if your case is tricky; if you have clearly suffered but the evidence pinning the blame on someone else is suspect; if you have been injured but that has merely aggravated a pre-existing condition, you’re going to find your choice of lawyer radically reduced. That is, if you ever had a choice, because the lawyer that you get to use will probably be dictated by your insurance company or by the claims farmer you called.

Access to justice? Not really.

Does it have to be this way? No. I’m not saying that lawyers don’t do a good job. Of course they do. And anybody thinking that running a law firm is a licence to print money should wake up and smell the freshly ground. Times is tough, folks. In personal injury and most other areas as well. There are loads of conscientious lawyers whose primary aim is to find a way to help their clients to secure their objectives and only then try to make it pay. Dozens, literally.

In the dying days of the last Labour government, then Justice Secretary Jack Straw commissioned a report on the chaos that is the field of legal costs from Lord Justice Jackson. The resulting Jackson Report recommended that success fees and insurance premiums cease to be recoverable from the opponent and that to make the system work, levels of damages be lifted by 25% across the board. So the insurers still pay, but at least the claimants have something at stake and therefore have an incentive to look around for the best deal. And the lawyers that will lose out are only those that have made a living out of litigating over the levels of costs recoverable.

Somehow, I still don’t find this satisfactory. It still doesn’t address the imbalance between claimants and uninsured defendants, nor does do much to enable those engaged in commercial disputes find competent yet affordable representation. For some reason, we have chosen to make it so much more complicated than the way it works in the USA, where a lawyer can take a percentage of his or her client’s damages and businesses know that they have to budget a certain amount for defending litigation, and then keep skilled lawyers on retainer for that very purpose. The USA is where the phrase “ambulance chaser” was invented. It’s also the home of community justice, public law centres and the like. You don’t find many over there complaining about the absence of access to justice. They just get on with it. And if a party does behave really badly, an American court can still order that party to pay the other’s legal costs, but that is very much the exception.

The problem is that we are building not on virgin ground but with the conviction that we must imitate what existed before. And what existed before was an unsustainable legal aid system that protected the legally aided party to the extent that in 99% of cases, the losing legally aided litigant could not be required to pay the winning party’s costs. And yet were the result to be reversed, the losing party would have to repay the Legal Aid Board for the subsidies it had paid to the opponent’s lawyer. Compared with that, the current conditional fee system seems sensible, even though allowing a Claimant to pursue litigation without having to put anything on the table him or herself is to pursue a system that has no real foundation in reality. And in the realm of unreality, the bizarre is merely ordinary. Conclusion: lawyers are afraid of the new system not because there is any real jeopardy to access to justice – at least no more than there is already – but because they don’t want the job of having to explain to their – our – clients that they will have to invest in the process themselves. And what of the claims farmers? Let them find another market to leach on, say I. Something tells me they won’t go hungry.