Dominic Regan shares his reflections on 2018—one hell of a year for civil litigators
Dr Karen Brennan & Dr Emma Milne examine the socio-historical context behind the infanticide law
In the six months up to the end of November, Hammersmith and Fulham Foodbank fed 7,342 people compared to 6,376 last year and 3,317 in 2016. A fortnight before Christmas Day I shadowed Sophie Earnshaw, a lawyer running a free legal advice clinic at the foodbank as part of the ‘Justice in a Time of Austerity’ project.
During our morning at St Matthew’s Church, just off Wandsworth Bridge Road, South Fulham, we met a 33-year-old woman from Algeria with three children under the age of 16. ‘I haven’t received any money for three months. I’m living off food vouchers,’ Asma told us.
Earlier in the year, her husband threatened to kill her (not for the first time) and social services arranged for her and the children to move to a refuge. She hadn’t a penny to support her and the children since she left their father. Her housing benefit was being paid directly to the refuge, her husband was in receipt of the child benefit and, the final straw, she had just been refused universal credit.
The largest foodbank provider, the Trussell Trust, which supports Hammersmith and Fulham Foodbank and last year provided 159,388 three-day emergency food supplies, predicted that Christmas 2018 was set to be the busiest to date. The charity pinned the blame on benefit cuts and, in particular, the chaos of universal credit.
In the case of Asma, the Department for Work and Pensions (DWP) had decided that she did not have a right to reside because she has was no longer with her partner who is an European Economic Area (EEA) national and was therefore not eligible.
Sophie Earnshaw, who works for Hammersmith and Fulham Law Centre, quickly ascertained that, on the facts before her, the DWP was in error. It was not an uncommon occurrence, she observed. According to Earnshaw, they had failed to take into account the fact that Asma was still a family member of an EEA national and did indeed have a right to reside.
It was a desperate situation. ‘I don’t know about the future,’ Asma told me at one point. ‘I am very scared.’ But, in one respect, she was lucky. She had found a lawyer willing to help her. Earnshaw took her number and assured Asma that she would fix an appointment at her office.
Publicly-funded legal advice for welfare benefits was axed as a result of the 2013 legal aid cuts under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act. The only legal aid that remains is for appeals to the Upper Tribunal when there is only a flat fee of £208 – ‘a token gesture’ reckons Sophie Earnshaw. ‘You might well have spent ten hours on a client before legal aid even kicks in,’ she added. Her role at Hammersmith & Fulham Law Centre is funded by the City Bridge Trust.
Later I spoke to Daphine Aikens, who founded the Hammersmith and Fulham Foodbank in 2010, about the idea of legal advice clinics in a foodbank setting. The original idea was to offer food parcels ‘as well as a listening ear and a bit of sign-posting,’ she explained: ‘By the time people come to a foodbank they aren’t just hungry, there is usually something else going on.’
According to Aikens, the dependence on foodbanks in one of the wealthiest parts of London had grown exponentially since the introduction of universal credit. ‘We were one of the first boroughs to pilot it and it has been with us a couple of years,’ she says. ‘The impact has been very significant – life-changing in a very negative way.’
Of the six people that Earnshaw sees, four report problems with universal credit. We also met one of her clients at the foodbank, clearly in pain from major neck surgery, who had been incorrectly assessed by the DWP in relation to her personal independence payment (PIP). She had failed to qualify for the mobility component.
Earnhsaw referred her to a clinic that the law centre runs with City firm Debevoise & Plimpton. The firm’s lawyers, who volunteer at the law centre, will draft a submission in support of her appeal and attend the hearing at the first-tier tribunal. As Earnshaw explained the scheme, the client mentioned that she had spent £450 cash to a private solicitor. The advice turned out to be nothing more than filling out a form which, Earnshaw described as ‘blatantly exploitative’. As the client left, she struggled to lift herself from her seat and had to be helped on to her feet.
Later that morning I saw Asma as she was leaving. Foodbank volunteers had arranged for her to have Christmas presents for her children. When I suggested it must be reassuring to have met Sophie Earnshaw and received proper advice, she replied: ‘Yes. Do you think she will ring?’
The week before my visit, Labour had promised to restore legal aid for benefit appeals. The shadow justice minister Richard Burgon claimed that in the five years since the LASPO cuts came into effect in 2013, the number of people receiving legal aid to challenge benefit decisions had collapsed by 99%; meanwhile the Ministry of Justice spent more than £100m a year on tribunals disputing appeals against benefit decisions.
As an aside, it was welcome to read the former New Labour Lord Chancellor Lord Charles Falconer’s mea culpa inThe Guardian on New Year’s Eve. The lawyer acknowledged that the LASPO ‘devastation’ was made easier ‘by the attempts of previous Labour lord chancellors, including myself, to control a budget that was, as we saw it, rising too fast’. ‘It was a mistake to go so hard on the offensive in seeking to get that budget under control,’ Falconer said.
Asma’s name and some details have been changed to protect her identity.
A postscript: Sophie Earnshaw did ring Asma. They met at the law centre’s offices shortly after the session at the foodbank. Asma has since challenged the local authority’s failure to provide financial support and weekly payments are now being made by social services and will continue until her universal credit is resolved.
Jon Robins is an NLJ columnist, editor of The Justice Gap . His latest book Guilty Until Proven Innocent (Biteback 2018) is out now. You can find out more about ‘Justice in a Time of Austerity’ at www.thejusticegap.com.
2018 was one hell of a year for civil litigators. Indeed, a number of reported decisions have arisen because of ignorance about fundamentals where people really ought to know better.
The big procedural reform just kicking in is the disclosure pilot scheme being run out nationwide in the business and property courts. It is a bold attempt to curb expensive disclosure activity. Change was precipitated by clients who were appalled at the futility of it all. Confronted by a threat to take their disputes elsewhere for determination, perhaps by way of arbitration, steps were taken to placate the aggrieved. Ed Crosse, immediate past president of the London Solicitors Litigation Association, and many others have done so much to make things better. Let us all hope it works.
Service of proceedings has always been a troublesome matter, particularly where it is left until the last minute. The Supreme Court divided 3-2 in Barton v Wright Hassall  UKSC 12,  All ER (D) 109 (Feb). Mr Barton was a litigant in person seeking to sue his former solicitor. The claim form was not served upon the defendant but was instead sent to those representing the defendant. Service failed and the claim became statute barred. This was because there had been no intimation that this alternative method was acceptable to the defendant. Retrospective validation of service was sought under CPR 6.15, but was refused by the majority. Lord Sumption, who retired last month, declared that the rules of service were intelligible and the claimant was the author of his own misfortune in leaving his attempt to serve until the very last day of the four-month period. Incidentally, the status of the claimant made no difference. Legally represented or not, all must abide by the CPR.
An intriguing point arose in Woodward v Phoenix Healthcare Distribution Ltd  EWHC 2152 (Ch),  All ER (D) 121 (Aug). A claim form was issued on 19 June 2017, the last day of the six-year limitation period. Service was therefore to be effected by 19 October. The claim form was received by the solicitor acting for the defendant by 18 October. However, the solicitor was not authorised to accept service and revealed this on 20 October, whereupon the claimant resorted to every method of service known to man before applying to have retrospective service validated by the court. Master Bowles granted the application on the basis that the defendant had acted in a tactical manner. Denton v White  EWCA Civ 906, decried the taking of opportunistic points. Here, the defendant had deliberately kept quiet until time had expired. This was inconsistent with the duty to assist the court in enabling cases to be dealt with justly and at proportionate cost.
This decision has now rightly been reversed upon appeal and my case citation is for the appellate decision of His Honour Judge Hodge QC. The claimant was responsible for leaving everything until the last minute.
One costs counsel described Pt 36 as ‘the gift that keeps on giving’. Disputes about the rule generate hearings galore. More than a dozen decisions were reported over 2018 and on five occasions the dispute went up to the Court of Appeal. It has to be said that many hearings concerned problems addressed in the past but some either forget or never noticed first time round. I am asked by law firms to come and talk about Pt 36 more than any other aspect of Civil Procedure. A half day sails by in identifying the traps and tactics.
Budgets continue to be filed late. This occurred in BMCE Bank v Phoenix Commodities  EWHC 3380 (Comm),  All ER (D) 149 (Oct) where the defendant was two weeks late. Service by the claimant ought to have provoked the defendant (although the claimant was itself a day late). An offer by the defaulting party to bear all additional costs incurred didn’t work. One cannot buy one’s way out of trouble, a point made by Mr Justice Carr (for whom a seat in the Court of Appeal surely beckons) about late amendments in Su-Ling v Goldman Sachs  EWHC 759 (Comm).
Any application for relief from sanctions must be made promptly, yet another fundamental that is regularly overlooked. It was missed in BMCE . The day default is identified should always be the day upon which a formal application for relief should be made. What is potentially forgivable where the breach happened two days earlier can become unforgivable a month later. See para 57 of Oak Cash and Carry v British Gas Trading  EWCA Civ 153,  All ER (D) 128 (Mar) which is the most significant development on relief after the Denton trilogy  EWCA Civ 906.
One can confidently predict that the same old problems will recur in 2019. Sadly, some litigation leopards never change their spots.
Professor Dominic Regan, City Law School & NLJ columnist (@krug79).
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