Better Call Saul

Just before Christmas, the Court of Appeal dismissed Mr Robert Ekaireb’s appeal against conviction for the murder of his pregnant wife. The appeal was founded on the alleged incompetence of Mr Ekaireb’s brief – Michael Wolkind QC.

Unsurprisingly, the appeal failed. The Lord Chief Justice, Lord Thomas, found that Mr Wolkind should go to bed earlier, concentrate harder, and not play on his blackberry whilst the court was sitting, but that this did not make the conviction unsafe.

What intrigued us, was this paragraph:

Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However, whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

To put this in context. Lawyers were not allowed to advertise at all.  Publicity was considered inimical to the dignity of the calling.  One merely waited for the footfall on the threshold, or the brief with the pink ribbon to be delivered.

Firms of solicitors are now more comfortable with advertising than barristers’ chambers. City solicitors now employ legions of marketing minions. Barristers, however, have a less developed structure and the vulgar business of self-promotion is left to the individual practitioner or the clerks.  Some barristers have embraced the challenge with more gusto.

Barristers with their own personal websites was a new one on us. But why not?  Since 2004, barristers can be approached by members of the public directly.  They do not have to be chaperoned by costly solicitor intermediaries.

Joanna Public has not felt entirely comfortable with going to talk to their Holinesses direct. Other professions, for example accountants and surveyors don’t shy away from chatting with counsel.  After all, that means that clients’ fees can be cut two ways instead of three.

So let’s say you’re in the unfortunate position of Mr Ekaireb, what do you do? After you’ve been arrested, the duty solicitor comes and prises you out of the nick.  The duty solicitor scheme is run by local firms, who use it as a way of picking up work.  Each firm will have its own stable of counsel whom they instruct and you’ll get one of those.

Mr Ekaireb’s solicitor had already chosen junior and leading counsel for him. However, Mr Ekaireb, doing a spot of internet browsing to while away his curfew came upon Mr Wolkind’s website: http://www.topcriminalqc.co.uk/.  So impressed was he with Mr Wolkind’s claims, that he hired him on the spot.

We were intrigued by this new genre of legal self-aggrandisement. Was it widespread?   We set ourselves a little challenge.

Over the Christmas period, getting rather vexed by your Significant Other, you hit them over the head with the empty bottle of Prosecco. Perhaps more than once.  What crime has been committed?  (as criminal law questions have it), but more pertinently – what star internet QC are you going to call?  Was there a goodly choice out there?We typed  “criminal qc” into google and found only these:

http://www.topcriminalqc.co.uk/

http://www.bestcrimebarrister.co.uk/

http://www.bestcriminaldefencebarrister.co.uk/

http://www.criminalqc.com/

http://jeremydeinqc.com/

I’m loving the rank immodesty of some of the website names. Let’s be charitable, though and assume these are merely to attract the fickle attentions of the search engine.

Such charity might be misplaced, when you click upon Mr Wolkind’s link. He is no shrinking violet.  Next to a picture of himself if the strapline “UK’s top Barrister”.  It gets worse…

  “There are great legal minds, even greater legal minds, and then there is Michael Wolkind QC, a man who has no fear when holding your future in his hands”

says the first testimonial on the home page, and then a bit further down this little gem:

 “Michael’s first ever case as Leading Counsel defending in a murder was a front-page dismemberment at the Old Bailey, back in 1985. Nicholas Boyce had killed his wife, Christabel, and chopped and cooked her remains before disposing of her head in the River Thames at Hungerford Bridge. He was acquitted of murder after a jury retirement of less than an hour”.

Poor Christabel.

Then again you can click on video footage of Mr Wolkind on Sky News doing an impressive Barber of Seville type rap on the law of self-defence.  The front page ends with a personal invitation to you:

 If you are facing trial, or if you wish to appeal a conviction or appeal a sentence, and would like to discuss the case with the UK’s top Criminal Barrister and QC, please feel free to contact me for a preliminary conversation.

 Disappointingly, the click through sends an email to Mr Wolkind’s clerks, rather than a chinwag with the real McCoy. For Mr Wolkind has not turned his back on the traditional, chambers system.  He is one of many other silks at 25 Bedford Row.  Reassuringly, however, they are the best Criminal Defence set ever.  We know this because they tell us.  Plus they’ve won awards for it.

Wolkind’s site is very visceral and populist. I wanted to believe in his greatness, but after seeing his performance on Sky News, I wondered whether the patter mightn’t get on the jury’s nerves. Not to mention the judge’s.  Lord Thomas clearly wasn’t impressed. That being said, I’m not in the position of our putative champagne slaughterer.  Perhaps the hagiographic tone appeals to the desperate.

How about www.bestcriminaldefencebarrister.co.uk/? This got us to:

Howard Godfrey QC – one of the UK’s – Best Criminal Barristers

A “serious face” masthead shot.  We liked the more modest approach. Not the best, but primus inter pares. We liked he’d been at it for forty years.  Probably had learnt a trick or two.  His “about” page, mitigates the home page’s serious face.  Here Howard is shown looking slightly more relaxed, without compromising the gravitas.  He sports a pretty pink sweater and is an all-round good egg. He lives in Berkshire with his wife and dog, so that’s a plus point.  He goes on:

 When not working he relaxes by playing with his grandchildren, messing about in a boat on the River Thames, and eating and drinking well. Howard also loves travel, and is a keen photographer. As a former cricketer, he is a big cricket fan, and is a member of the MCC.  Other passions include theatre, film, and art.

Would he be too posh though? Or too old to appeal to a young jury? What if he drowned during my trial, or drank rather too well the day before the Defence’s closing speech? At least he wouldn’t be fiddling with his blackberry during cross examination.  He didn’t look like a blackberry man.

I clicked on one of his videos, of which there are four. I found his inability to look at me whilst he spoke rather alienating.  “Look at me!”  I wanted to say.  “I’m the one who needs your magic”.

Still, he felt right, and sounded right. When he spoke of the importance of maintaining the Defendant’s dignity during the criminal justice process, I saw his point.  I’d probably be feeling a bit short on that myself  if I’d just hit Them Inside with a bottle of bubbly.

Not that Mr Godfrey seemed keen on simple domestics. Indeed he gave us a lengthy exegesis on gang trials and cut throat defences.  Would he get bored if there were only two parties and one of them the silent witness? Would it be his eager junior doing the donkey work, with Mr Godfrey there to lend his hauteur?

Mr Godfrey practices out of 2 Bedford Row.  Another 2 Bedford Row inmate is http://www.bestcriminaldefencebarrister.co.uk/I liked Quentin Hunt’s modesty.  No masthead shot for him, instead panoramic views of the City of London with the Old Bailey tucked in.   A white collar crime man, the site said.  Trust me for your complex VAT fraud, confide your devilish Ponzi scheme into my willing hands.

The video though is disappointing. It’s shot at tricksy angles and starts with huge mouthfuls of platitudes.  Quentin warms up hugely when he talks about paperwork and detail.  He seems like a nice bloke, too. A good thing when it’s you and him for months and months and months in an interminable white collar crime trial.  Not an emotive jury man then, but good with judges I should think.  Perhaps not the brief for the Santa slayer then, but one to remember when HMRC come knocking.

Next up was http://www.criminalqc.com/. Click, and the face of Sir Ivan Lawrence QC appears.  He who was MP for somewhere up North, for twenty years.  No offence to Sir Ivan, but it’s a terrible website! Did the clerks make you do it?  Or did you get the web name for Christmas and didn’t like to be rude by leaving it hanging vacant in the ether?  Nice and smiley and good library, Sir Ivan, but not for me.

At least you know who’re you are getting with Jeremy Dein QC. He is joint head of Chambers at Wolkind’s set and is not afraid to say so.  One minor quibble: I would question the judgment of having quite so many pictures of Jeremy.  If ever there was one, his is a head born to wear a wig.  However he does look quite the ticket in one.

His video is the best, undoubtedly. He speaks plainly and directly to camera and I loved the embarrassed little smile at the beginning of his spiel, clearly aimed at the person behind the camera.  “Do I have to do this?” the smile is saying.

I thought he might be the ideal counsel for our mince pie murderer.  He seems trustworthy above all. Solid.  Not too posh, not too glib.  In addition he writes stuff, speaks at conferences, sits as a Recorder at the Bailey.  Good on his feet, fixing the jury with his reassuring headmasterly air. A a safe pair of hands, a team player  –  a chambers man, not a lone gun out on a limb. Good Westlaw profile too.

So who you gonna call? Well on the basis of these brief researches, Mr Dein, is the one for me, sir. But it would rather depend on whether I trusted my solicitor more than myself to choose my brief.  What other talents could there be out there, too shy to come and talk to me in my drawing room?

And whether, of course, Mr Dein would want to take on the miseltoe mangler, and whether I could afford him.

 

The past is never dead. It’s not even past.

Gavin Edmondson Solicitors v Haven Insurance Company

[2015] EWCA Civ 1230

Once upon a time, Toad’s motorcar shunted Mole’s car.  Mole suffered whiplash to his tail and he went to see a solicitor to see what it was worth.  (Actually, what is more likely, Moley went home, took a few neurofen and went to bed early.  It was only when he was subsequently hounded and haunted by claims farmers that he was persuaded to go and see a solicitor, in the hope everyone would leave him alone).

Minor personal injury – PI – claims are now run through a clever website set up by insurance companies.  It is buttressed by a special protocol for traffic accidents.  You don’t have to use it, but if you don’t, then as a lawyer you might be clobbered when it comes to costs.  It essentially makes communications between the parties easier.

Mole’s solicitor, Badger, fills in a special 17 page form and lodges it on the portal.  It details Mole’s hurty tail and crumpled whiskers.  (Didn’t I mention the crumpled whiskers?  Badger had to point them out to the Mole).  

This is stage 1 of the process, and Badger gets £400.  There are three stages, and solicitors get fixed fees for each of them, plus a success fee plus expenses. Mole doesn’t have to pay anything because this is a no win, no fee deal.  It’s not easy to get legal aid now, and certainly not for a crimped tail and ruffled whiskers.  

Mole is then rung up by the Weasels.  They are the insurance company who insure Toad.  They offer Mole a couple of thousand for his trouble, and Mole accepts their kind suggestion.  He then tells Badger he doesn’t need his help anymore, but thanks anyway.  

So everyone is happy, except for poor old Badger.  Who is going to pay his fees now the insurer and his client have done a deal?  Surely, though, Badger in his carefully drawn retainer (contract) with the Mole must have provided for sneaky-beaky behaviour by punters?  Badger????

Ooops!!!  (weeping emoji).

This is the sad story of Gavin Edmondson “specialist and diverse legal services from a dynamic and progressive firm” based in Cheshire.  What should they do next?  Especially as the Weasels have pulled this stunt on other clients as well.

Well, one of the economic torts instantly comes to mind – those chapters at the back of your Introduction to Tort book from law school that you never looked at.  This would say: you nasty Weasels interfered with my contract unlawfully and I suffered loss.  Sound plausible?  That was pleaded too, but then this dynamic and progressive firm out with a real bad boy of a claim: an attorney’s lien (pronunciation as in David).  

Not heard of that?   This is a magic wand fashioned in that special, mysterious smithy known of yore as the Court of Equity.  Lawyers will know the various mystic phrases: Equity is a patch on the cloak of the common law; equity comes to fulfill the common law, not destroy it.  

Or put another way, Equity throws a loving, protectionist arm around poor Badger and tells the Weasels to pay all of Badger’s costs, expenses and success fees.  Welsh judge, HHJ Milwyn Jarman had been less impressed with Equity’s charms at first instance, but Lloyd Jones LJ completely succumbed to her blandishments.  

There is, he reckoned, something so special about a solicitor, that he should be kept safe from loss by whatever means.  Or to quote Lord Kenyon in Read v Dupper 1795:

“The party should not run away with the fruits of the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances at whose expense were gained.”

We can all agree with that.  If you make a contract, you should keep it.  If you eat a meal in a restaurant, you shouldn’t run away without paying. But bad things happen, and any transaction carries with it a risk of default.  What the solicitor’s lien does is impose an additional liability on the third party former defendant, to pay the bill in default.  Or as Lord Mansfield said in Welsh v Hole 1779:  

An attorney has a lien on the money recovered by his client, for his bill of costs; if the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the Court, they will prevent its being paid over till his demand is satisfied. I am inclined to go still farther, and to hold that, if the attorney give notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned, after notice.  

Actually, here the solicitor didn’t succeed, but throughout the nineteenth century, there were lots of attempts, some of them successful made on the basis of the lien and attracted the “equitable intervention of the court”.

On one level, this makes sense.  The Westdeutsche Landesbank case says that equity fixes on the conscience of a defendant.  If the plaintiff and the defendant are colluding to avoid paying the solicitor’s fees, then one can see that Equity might have a thing or two to say about it.  However litigants are free to settle litigation without involving their lawyers, and the idea of the would be defendant being essentially a guarantor for the solicitor’s fees is a bizarre one.  

The solicitor’s lien found a twenty first starring role in Khans Solicitors v Chifuntwe two years ago.  I do wonder what clever person turned up this case.  The concept lay dormant in the twentieth century apart from a single outing in front of Scarman J.  

Chifuntwe,  a decision of Sir Stephen Sedley, with Ryder and Rix LLJ as makeweights, I found genuinely jaw-dropping.  That “you’ve gotta be havin’ a laugh” feeling takes hold and your normative earning a meagre crust lawyer self puts on its hat and coat and takes a turn around the block whilst the critical legal devil rages itself into a puff of smoke.  

Gavin Edmondson reprises Chifuntwe.  Unlike Chifuntwe however, the insurance company’s behaviour was sharp and a rap on the knuckles was called for.  Quite why though, a court in 2015 would resurrect a rule accepted as established in 1795, and dormant since 1897 (pace Fuld ) to administer the correction, is puzzling.  

Nor is the rule based on solid or consistent legal argument.  It’s clearly not a lien because the fruits of the litigation are not in the solicitor’s actual possession.  If that were the case, there would be nothing remarkable about the doctrine.  However this soi-disant lien is some kind of extra-statutory charge which is either based on collusion – mala fides – or on the doctrine of notice.  Quite frankly Lord Mansfield’s analogy with an equitable assignment is queer.  I note he handed down the judgment on a Saturday morning.  Perhaps after an excessively sociable evening the night before.

The Weasels are seeking leave to appeal to the Supreme Court, and I hope the justices fancy a nibble.  Don’t get me wrong; I don’t hold a brief for a barbary ape dwelling insurance giant.  However digging up this non-contextualised fossil with all the insouciance of a early morning dog digging up a human skull at the beginning of a Scandi boxed set does nobody any good at all.  

On Street Names: Basildon Borough Council v James

This must be one of Garnham J’s first judgments as he was only elevated at the end of October. Quondam Neil Garnham QC of 1COR  (1 Crown Office Row, home of the Human Rights Blog) , his old chambers page has an impressive list of  his heavyweight briefs:  for the troops in the Baha Mousa and Al-Sweady inquiries;  the Security Service in the 7/7 inquest; the Met at the Leveson inquiry; HMG in the Litvinenko inquest.   

With form like that, you don’t need designers to puff you.    His photo is smiley, small and of poor quality.  It immediately invites reassurance. The page is refreshingly clear of vulgar brag tags from legal directories.  I’m guessing he’s good, even if he went to a private school and Oxbridge.  

So rather a come down to be assigned to this little case on street names on an estate in Basildon.  Real name:  Five Links; non-affectionate local moniker: Alcatraz.  Alcatraz was built in the 1960s, when architects and planners were having a notoriously bad hair decade.  The makeover of the estate has been chugging on since the late nineties.  Some of the estate has been demolished, more housing stock has been added.  

I’m guessing the new reconfiguration is why this squall-ette blew up.  The old street names got a bit unwieldy, and the Council decided to mark the beautification process with a twenty first century baptism.  Not that the old ones are bad:  Brendon, Handley Green, Laindon Link, Mellow Purgess, Newberry Side and Somercotes.  A little flares and Angel Delight perhaps, but perfectly commodious.

Street names are fascinating.  Some are descriptive:  Church Lane;  The Shambles;  Buckingham Palace Road.  Planned streets lack this raison d’etre.  Theyare lumbered with weird titles.   “Molly Huggins Close” is a personal favourite.  Victorian developers were no better.  Take Ulundi Road in Blackheath.  Why would you name a street after a colonial massacre?

Mr Gasztowic QC appeared for the Council.  His chambers page has a high def. picture of himself looking enigmatic.  The CV does not condescend to particulars, but is meant to sound grand.    Still it’s a better picture than the Residents’ brief, Ms Moonan.  She has a dark and rather sinister avatar outline.  Perhaps as a criminal defence barrister she is wary of being briefed for Carter-Silk purposes.   There’s not much about her street signage practice either, but good for a girl to have a hobby.

The case came to Garnham J by way of case stated from DJ Branston.  He wrote a stonking 112 paragraph judgment about why the Council was wrong.  

Just in case you don’t know  the provision for naming streets is set out in the section 18 of the Public Health Act 1925.  This harks back to an age when housebuilding was seen as a preserve of public health rather than as a branch of wealth acquisition.

Under section 18, the Council can call a street what it likes.  This is less of a problem when the streets are brand new.  However, here in the Five Links estate, people had been living in these streets all their lives, and didn’t want to wake up in the morning with a whole new address to spell out to call centres.

Any person aggrieved by the proposed nomenclature may appeal to “the petty sessions” under section 8. Appeal from there is to a DJ, and thence to the QBD.

The thing that makes this case interesting is that there’s no case law on the statute even though it’s nearly a hundred years old.  So a blank sheet of paper, and who writes the rules? The answer to that of course is the most senior person in whose lap the question falls.

I liked DJ Branston’s approach, although whether he came up with it himself or adopted it from the nameless advocates below, I know not.  Wednesbury unreasonableness was not deemed suitable, so the judge adopted the analogy of the appeal from a licensing application.  Which was creative.  Based on this foundation, the learned DJ set out seven criteria to which the Council should have had regard:  logic; clarity; utility; attractiveness; public safety, history and the wishes and feelings of the residents.  Pace Oliver Wendell Holmes, a very fine list it is too.  It points to the learned DJ being a practical and tidy-minded DJ.  Aesthetics is well down the list, as is what the natives think.  

The new street names were found wanting, and the losing Council appealed by way of case stated to the Big Court.  Query:  why didn’t they act all consensus and cuddly and  get the residents to vote?  Slightly stalinist to rename stuff in line with the new regime?  

One of the things that makes administrative law frustrating is that big picture questions and creative solutions do not often win out. And so it was here.  Garnham J expressed his disagreement with both sides’ submissions and said the question had been framed wrongly.  The statute and the appeal by aggrieved persons did not allow the adjudicator to set their own parameters.  Instead, the judicial exercise was restricted to saying whether the council had exercised the power wrongly or not.  It was on the aggrieved persons to prove this, rather than, as Branston DJ had done to put the burden on the Council to justify its rebranding decision.  

But the battle isn’t over yet.  The question has been remitted back down to the DJ now that he’s been told what to do.  So the lesson is that even if there’s no precedent for something, don’t think you can mark out your own boundaries.  Not unless you’re top dog that is, and then you can practice street furniture marking as you please, provided it sounds convincing.  Will the residents be able to afford to appeal the judgment, and also as this is virgin territory, perhaps the JSCs might fancy a go?

The war of Alcatraz is not yet over.