Representational Case Intervention Policy

Representational Case Intervention Policy
Legal Services
Updated 31 August 2008
© The Law Society 2008
1. Background. There are two main mechanisms for the Society to become involved in
litigation in which it itself is not a party to the dispute. First, it can offer litigants
financial support. Financial support, which of necessity is extremely limited, is
covered by the Society’s Litigation Support Fund Policy. Secondly, it can itself apply
to court to intervene1 in a case as a representational body to make representations
on behalf of the profession. The Society usually intervenes in four or so cases each
year and over the years has built up a reputation for helpful and useful interventions.
Society involvement in a case can often turn it into a test case of importance to the
profession. A list of the Society’s main interventions from 2003 to date is set out
2. Purpose of policy. This policy sets out when the Society will normally seek to
intervene in test cases. The policy is intended to assist any members of the
profession and any Law Society committees and boards who may wish the Society
to intervene into a particular case.
3. As with the Litigation Support Fund Policy, the purpose of this policy is not a trade
union one. The purpose of a Society case intervention is not to assist members of
the profession to remedy instances of individual injustice, however worthy their
cause may be. Rather it is to act as the voice of the profession where a legal
principle of general importance to the profession or to a significant section of the
profession is at stake in the case. For example, the mere fact that a particular
decision affecting the profession is perceived to be unfair by the profession does not
make that decision unlawful. What must be at stake in the case is a legal principle of
general importance to the profession, rather than simply a pure principle of policy,
fairness or morality. On the other hand, if there is evidence that individual injustices
are being replicated and are becoming part of a general trend affecting the
profession or their clients, then such a case is capable of involving a principle of
general importance to the profession. It is a question of fact and degree.
This policy covers informal as well as formal intervention in a case. Formal intervention is where the Society becomes
an party to proceedings by intervention. Informal intervention includes writing a letter to the court, any written
submissions by the Society lodged with the court and the provision to another party of a letter of support or a witness
statement. .
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4. Key elements. A decision on whether or not to intervene into a case is essentially a
policy decision for the Society. In making its decision, the Society will need to
address a number of factors and seek to balance them all in coming to a decision
which is in the Society’s overall best interests. These factors will include policy,
political, strategic, stakeholder, reputational, human rights, equality, representational,
sectional, financial and business considerations. Alternative more proportionate
means of achieving the desired policy end will also need be considered. That said,
three elements will normally be key to the Society’s decision.
First, there must be a legal issue of general importance to the profession, or to a
significant section of the profession, at stake in the case.
Secondly, there should be a legal argument of some merit that the Society can
properly advance in the case.
Thirdly, the case should be one in which the Society is able to provide the court
with balanced, informative and useful submissions, advocating fundamental right
and public interest considerations rather than narrow sectional interests.
5. Detailed criteria for case intervention. In determining whether or not the Society
should seek to intervene as a representative body into litigation, regard will be had to
the following criteria:
a. The case must involve a legal issue of general importance to the profession or to
a significant section of the profession.
b. It should be reasonably likely that the case will be determinative of the issue as a
matter of law.
c. If possible, the case should have reached the stage where the issue can be
resolved cleanly and authoritatively (eg it has reached the appeal stage).
d. There should be legal arguments of some merit that the Society is able to
advance in the case.
e. The case should be one in which the Society is able to provide the court with
balanced, informative and useful submissions, advocating fundamental right and
public interest considerations rather than narrow sectional interests.
Society support for the case should normally accord with the Society’s policy
objectives, strategy and priorities as a professional body and should not conflict
with them.
g. Consideration will be given to all relevant factors which shall normally include
policy, political, strategic, stakeholder, reputational, human rights, equality,
representational, sectional, financial and business considerations.
h. In important cases or cases where it is important clearly to detach the points of
principle from the facts of the particular case, the Society will normally prefer to
intervene in the case rather than to support the case by way of a grant of
financial assistance under the Litigation Support Fund Policy.
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There should normally be no risk that an intervention will lead to an adverse
costs order against the Society and that means
The financial cost of the intervention should be reasonable and there should be
an available budget for it.
k. Consideration will be given to the appropriateness of the different methods of
intervention, these ranging from a full intervention to make written and oral
submissions or an intervention to make written submissions only, to the simple
writing of a letter setting out the Society’s position and concerns to the court or to
one of the parties to the case.
Consideration will be given to the appropriateness of any more proportionate
means of achieving the desired policy end other than litigation intervention.
These alternatives will include offering support by way of a grant of financial
assistance under the Litigation Support Fund Policy, publicity campaigns, political
lobbying or issuing a Practice Note or other guidance.
6. Requesting case interventions. Members of the profession and others are very
welcome to bring to the Society’s attention cases which they think may warrant a
Society intervention. If a member of the profession wishes to request that the Society
intervenes into a case, that is welcome too. Please contact the Head of Legal
Services with any information or request. It will greatly assist the prompt
consideration of any request if (as far as possible) it could –
give details of the case in question, enclosing where possible any pleadings,
statements of case or any other relevant documents;
enclose copies of any counsel’s opinions or advice on the merits which may be
indicate why the case involves a legal issue of general importance to the
profession or to a significant section of the profession;
seek to address as far as possible the criteria normally apply in deciding whether
or not the Society should intervene (see paragraph 5 above);
give details of the court’s litigation timetable including any urgent forthcoming
deadlines that may be relevant to the Society’s intervention is the case;
have collated and annexed any evidence that may be relevant to the point in
issue (eg statistics, the experience of other practitioners).
Once all the relevant information is available, decisions on case interventions
normally take about 21 days. Cases which appear to meet the criteria for intervention
are put forward for decision. This internal process usually involves consultation with
the appropriate Law Society specialist policy advisers and the appropriate Law
Society committee (see paragraph 8 below). Depending on the particular
circumstances of the case, consultation may also be needed with the Legal Affairs
and Policy Board or the Regulatory Affairs Board. These two Boards set Law Society
policy. Decisions on interventions are made by the Strategic Litigation Group. This is
a sub-committee of the Management Board and is responsible for the Society’s
conduct of high profile litigation. In urgent cases, the process can be expedited.
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7. Conduct of the litigation. The Head of Legal Services acts as the solicitor for the
Society and so the Legal Services Department has the day to day litigation conduct
of the application to court to intervene as well as of the actual intervention itself.
Save in exceptional cases, it is departmental policy that case intervention litigation is
conducted in-house and so external solicitors will not be appointed and the Head of
the Legal Services will be the solicitor of record. The selection of external counsel
and (where appropriate) external solicitors is the responsibility of the Head of Legal
Services and will be made in accordance with the department’s established selection
criteria, which are set out in the Department’s Practice Document P02 Using external
solicitors. Views from any interested person as to appropriate counsel or (where
appropriate) external solicitors are welcomed. Under departmental procedure, an
intervention case will be allocated to one of the department’s Legal Advisers who
should be treated as the primary departmental contact for all matters connected with
the intervention and who will have the day-to-day conduct of the file under the
supervision of the Head of Legal Services.
8. Role of Law Society committees and specialist policy advisers. The Society
maintains a network of specialist advisory committees. The role of these committees
in the intervention process, and the role of the specialist policy advisers who support
them, is invaluable. Their function in the process is:
to give a view as to whether the case raises a legal issue of general importance
to the profession, or to a significant section of the profession
to assist in interpreting any technical complexities involved in the case
to assist generally in the preparation of the Society’s intervention case.
The Legal Services department will need to maintain a close liaison with the relevant
specialist policy adviser, who, as well as being the point of contact with the relevant
Law Society committee, is primarily responsible for evidence gathering and for
providing clarification on issues of Society policy.
9. Contact details. Information, enquiries or requests should be addressed to the Head
of Legal Services whose contact details are as follows:
Anthony Brooks
Head of Legal Services
Law Society
113 Chancery Lane
London WC2A 1PL
DX 52 Chancery Lane
Once an enquiry or request is received, it is normally allocated to a Legal Adviser
whose contact details will then be provided to the applicant. The Legal Adviser will
be the day-to-day contact in respect of the case thereafter.
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2003 TO 2008
The introduction of the materiality test for determining when technical defects in
conditional fees agreements are unenforceable (Hollins v Russell 2003).
The preservation of the value element as a legitimate method of charging in
probate matters (Jemma Trust 2003).
Judicial dicta that the issue of a summons against a solicitor to give evidence
of identity against his own client should only happen in the most exceptional of
cases and should never become routine prosecution policy (Howe v South
Durham Magistrates 2003).
Judicial dicta that the court cannot compel alternative dispute resolution on
parties to ordinary civil litigation cases and that in ordering costs against a
successful party who has refused ADR, the burden is on the unsuccessful
party to prove that the refusal was unreasonable together with the laying down
of guideline factors as to what is reasonable. (Halsey v Milton Keynes NHS
Trust 2004).
The successful defence of the scope of legal advice privilege and its status as
a fundamental right. (Three Rivers v Governor and Company of the Bank of
England 2004)
Establishing that the statutory disclosure regime under Section 328 of the
Proceeds of Crime Act 2002 does not apply in a litigation context at all,
including any related steps such as settlement negotiations (Bowman v Fels
Defeating an Article 10 challenge by media interests to the use of conditional
fee agreements in defamation cases (Naomi Campbell v MGN Ltd 2005).
Establishing the principle that a breach of the Practice Rules in costs cases
does not render costs unenforceable and that unenforceability can only
potentially occur when some well-established principle of public policy is being
breached as well (Garbutt v Edwards 2005).
Preventing an inroad into litigation by non-solicitors by establishing that the Bar
Direct Scheme involving professionals such as tax accountants does not offer
clients a suitable alternative for litigation cases to using an authorised litigator
since not all of their litigation costs will be recoverable from the other side
(Agassi v Robinson 2006).
Forcing the Legal Services Commission to withdraw contractual termination
notices they had served on Special Service Providers and to enter into a full
consultation on the future the SSP Scheme (Public Law Project and others v
LSC 2006).
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Forcing the Crown Prosecution Service to back down from terminating the use
for criminal cases of solicitor sole practitioner agents (TLS and others v CPS
Strengthening the use by solicitors and clients of ATE insurance and getting
the courts to recognise the practical context in which the use of such insurance
must occur (Rogers v Merthyr Tydfil BC 2006).
Quashing directions in criminal trials for the advance disclosure by the defence
of their witness details on grounds of breach of the defendant’s litigation
privilege (Kelly v Warley Magistrates’ Court 2007).
Getting court guidance for criminal practitioners on changes of representation
immediately before trial or mid-trial (R v Erdogan Ulcay 2007).
Preventing a damaging new principle of costs law being established that stays
of costs can be imposed pending claims which have not even arisen (Maloba v
Waltham Forest LBC 2007)
Upholding the rule of law by establishing that the Human Rights Act 1998 in
certain circumstances may apply outside UK boundaries to allow nonUK nationals to invoke certain rights guaranteed by the convention in respect
of the activities of UK government departments or agents (Al-Skeini and others
v Secretary of State for Defence 2007).
Making available to solicitors and their clients a slightly more sophisticated
conditional fee agreement that is likely to meet the needs of large clients such
as public authorities and large commercial companies which need to bring
litigation even where success will not lead to costs orders (Gloucestershire
County Council v Evans and others 2008).
Seeking to overturn the anomaly at EC law whereby legal professional privilege
does not apply to communications with in-house lawyers (Akzo Nobel and
others v European Commission – case ongoing).
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