In Parker v TUI UK Ltd [2009] EWCA Civ 1261, the claimant was injured when taking part in a tobogganing event in Austria.  After completing the toboggan run, she remounted her toboggan (despite being told that when she reached the end of the run she was to walk to the end where she would return her toboggan) and lost control of it due to the ice and suffered an accident.  At first instance, the claimant maintained that she remounted the toboggan because the road was slippery and her companion’s knee was painful.  Despite the tour operator assuming a responsibility to the claimant and owed her a duty of care, at first instance the claim against the tour operator failed. 

On appeal, the issue of whether there should have been a risk assessment of the road once the toboggan run had ended, as well as a system for preventing participants from remounting their toboggans after the end of the run was considered.  The Court of Appeal heard that there was no risk assessment for the lower road, and even if there had been, it was hard to conclude that it would have differed from the advice given to the claimant that she was to walk to the end after finishing her toboggan run.  The Court of Appeal dismissed the appeal. 

Students may care to highlight Longmore LJ’s quotation from paragraph 20 of his judgment:

“I cannot bring myself to hold that it is the duty of a tour operator dealing with rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and the relative safety of snow at its side.  So to hold would only encourage potential claimants to believe that whenever an injury occurs someone must be to blame.  That is not what the law of negligence is all about.”

In Uren v Corporate Leisure (UK) and ors [2010] EWHC 46 (QB), the claimant was taking part in an RAF health and fun day when he dived head first into an inflatable pool as part of a team relay game.  He was rendered tetraplegic and brought a claim against the corporate event company running the event and against his employer, the Ministry of Defence.  The claimant’s claim was advanced on the basis that it was unsafe because head-first entry had not been prohibited from the outset, or indeed after the game had got underway. 

Field J found that although the risk assessments for this activity were flawed, the question was not whether adequate risk assessments were undertaken, but whether the defendants took reasonable measures to ensure the game was safe.  Field J found that as the contestants were told to take care on entering the pool and as the risk of serious injury posed by the pool game was very small, the game did not have to be further “neutered” by prohibiting head first entry. The claim was dismissed.

Students may well face analogous problem questions during examinations and should not only remember the elements for succeeding in a negligence claim, but that in games of this kind a balance has to be struck between the risk of injury and the benefits of the sporting activity (such as enjoyment, physical challenges, etc….). Knowledge of the House of Lords case in Tomlinson v Congleton Borough Council [2003] UKHL 47 is essential before attempting questions of this nature.

The tests have come about due to complaints that many students on the £14,000 – £15,000 course are unable to express themselves coherently.  A survey in 2008 by trainee barristers revealed that a number of their fellow students lacked the linguistic ability to be good courtroom advocates.  The report highlighted deficiencies among both native and not-native speakers, including an “inability to speak fluently, with close attention to grammar, vocabulary and syntax, and an inability to write clear, correct and well-structured English prose”.

Baroness Deech, who chairs the Bar Standards Board, has told young barristers the profession needs to sift out linguistic stumblers, just as “the tone-deaf are not admitted to music school, nor are the two left-footed to ballet school”.

As always, students’ views are welcome

Click here to view the embedded video.

Click here to view the embedded video.

The Court of Appeal has ruled in the same case (renamed as G, R (on the application of) v X School [2010] EWCA Civ 1) that Article 6 of the ECHR requires that a claimant should be afforded an opportunity to be legally represented at a disciplinary/appeal hearing where it was determinative of a right to practise a profession.

The brief facts of this case was that G was a teaching assistant at X school. An allegation was made that he had had sexual contact with a 15 year-old work experience student. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority (ISA) so that it could determine whether he should be placed on a ‘barred’ list of those unsuitable to work with children. G brought judicial review proceedings challenging the governors’ decisions not to allow him legal representation at a disciplinary or appeal hearing.

My earlier blog post can be seen at http://www.interalialegal.com/wp-admin/post.php?action=edit&post=285

1) The Appellate Committee of the House of Lords made 45 decisions and The UK Supreme Court  decided 17 cases.

2) The total of 62 cases compares with the figure of 74 for 2008 and 58 for 2007.

3) The 62 decisions covered 79 appeals – 73 from England and Wales, 5 appeals form Northern Ireland and 1 from Scotland.

4) The composition  of the court changed in 2009 with retirements from Lord Hoffman, Lord Carswell and Lord Scott, with Lord Neuberger becoming Master of the Rolls.

5) Lord Collins became the first solicitor to be appointed a Lord of Appeal in Ordinary, Lord Kerr was the last of the 112 law lords to be appointed since 1876 and Lord Clarke became the first person to be appointed directly to the UK Supreme Court without first having sat as a law lord.

6) The Lord Chief Justice, Lord Judge, heard two cases concerning criminal law.

7) Lord Hope sat in 38 cases, Lord Brown sat in 36 cases, Lady Hale sat in 32 cases and Lord Neuberger sat in 31 cases.  Lord Hope presided in 28 cases (as Second Senior Law Lord and Deputy President of the UKSC) and Lord Phillips of Worth Matravers (former Senior Law Lord and President of the UKSC) presided in 27 cases.

The law lords also decided 45 cases when they sat in the Judicial Committee of the Privy Council.

9) Of the 17 cases decided by the UKSC, 9 judges sat in the case concerning the entrace requirements for a Jewish School (R (on the application of E) v Governing Body of JFS [2009] UKSC 15); 7 judges heard a case concerning hearsay evidence (R v Horncastle [2009] UKSC 14) and 7 judges also sat in a case regarding the standard of proof in child care proceedings (S-B (Children) [2009] UKHL 17.

10) Of the 62 decisions, only 18 (13 by the House of Lords and five by the Supreme Court) were private law cases.  44 cases were disputes relating to criminal law or procedure, judicial review applications, or human rights claims against public authorities.  Only two cases related to tax law.

11) 3 cases have been decided by a single  “judgment of the court” as opposed to each law lord/Supreme Court Justice  providing a judgment that allows the appeal or giving a dissenting judgment. Speaking of dissents, the most notable of the Supreme Court so far is the 5 v 4 split in the case over whether a Jewish school had directly discriminated against an applicant (R (on the application of E) v Governing Body of JFS [2009] UKSC 15). 

12) High profile cases of the year were R (Purdy) v DPP [2009] UKHL 45, where the DPP was ordered to promulgate a policy identifying the circumstances he would take into account when exercising his discretion to prosecute people for aiding and abetting suicide. The Supreme Court’s decision that the Office of Fair Trading had no power to consider the fairness of charges imposed by banks for unauthorised overdrafts (OFT v Abbey National Plc [2009] UKSC 6 and that people who are the subject of control orders have the right to be told of the case against them so that they can mount a challenge to the orders (Home Secretary v AF [2009] UKHL 28).

It will be interesting to see whether the UKSC will consider itself bound by the 1966 Practice Statement that entitled the Appellate Committee of the House of Lords to depart from its own previous decisions.  Ideas and arguments from students on this topic would be most welcomed.

Extracted from an article by Brice Dickson, Professor of Law, Queen’s University Belfast

For Chambers, One Garden Court chambers came top of the survey followed by 25 Bedford Row and Tooks chambers in joint second place.  For firms, Thompsons ranked the highest followed by Wedlake Bell and Russell Jones and Walker.

Overall, ethnic minorities are representated by nearly 14% of trainees, nearly 9% of associates and 3.5% of partners.  Women account for 55% of associates and 22% of partners.

It is clear that there is a decrease in the number of ethnic minorities that are reaching the upper echelons of the legal profession, and this needs to be addressed.  More details can be seen at http://www.blacksolicitorsnetwork.co.uk/news_det.php?id=57

1 Know your Law Library

In order to carry out effective research in a manner that is not time consuming or counter-productive it is imperative that a sound knowledge of the law library is acquired. Library tours, although they may take up to 30 minutes or even one hour of time during the first weeks of term, such time is not only well spent in familiarising yourself with the materials the library has and finding out where to locate them; but will, in my experience, save an enormous amount of time when essay deadline periods loom – or even last minute research in preparation for examinations.  Moreover, tours and demonstrations may assist in developing confidence to use a law library effectively and will doubtless reduce delay in finding required materials to begin research.

2 Primary and Secondary Sources

It is easier to start research from secondary sources (textbooks, articles, journals, etc…) and build up research to the primary sources (Acts of Parliament, Statutory Instruments, etc…).   Upon finding references to primary material it is important that such material must also be read; sheer reliance on secondary sources will probably have the effect of diluting the meaning that the primary source was intending – either due to the writer’s own viewpoint or idiosyncrasies.  Therefore, a failure to read and cross-refer secondary material with primary material risks misunderstanding and confusion that will invariably have wider ramifications.

3 Law Reports

Law Reports cover all areas of law and can be wide in scope, focus on a specific jurisdiction or concentrate on a specialist area.  In the course of research, (now knowing of course where to locate the Law Reports in your law library), the next potential problem is being able to identify the Law Reports from their initials used in citation.

While some citations are well known to students for example, WLR (Weekly Law Reports) and All ER (All England Law Reports), others may not be.  Where the latter is the case, initials of citations can be found in Raistrick: Index to Legal Citations and Abbreviations. Furthermore, when researching on-line, the Institute of Advanced Legal Studies has citation listings at the following address http://ials.sas.ac.uk/library/guides/docs/guide7_abbreviations.pdf

4 On-line Research

An effective legal researcher ought to have the ability to use paper sources as well as being able to navigate through a variety of on-line legal materials.

Lawtel UK is an extremely good primary and secondary research aid.  It has reported and unreported cases from 1980 with links to full texts and transcripts; contains the full texts of UK statutes in their original form from 1987 onwards; Statutory Instruments from 1984 onwards as well as including details of the date of commencement or amendments and has, in its Articles Index, summaries of articles from over 50 legal journals.

Searching on Lawtel UK involves entering keywords. To widen a search, use keywords in the singular or do a cross-database search which will allow a user to search for the same keyword(s) in more than one database.  To narrow down a search, try using conjunctions in capital letters e.g. drive AND driving. Using an asterisk will represent missing letters. e.g. drive* will find drive, driving, driven, etc.

Accessing Westlaw UK may require having an Athens User ID and password.  Once on-line, there are the search options of quick search, multiple database search, and table of contents which all appear on the left-hand side of the screen.  Quick search is useful for specific searches and a drop down menu gives a list of options to search from; moreover, the case locator option can be found here which (after typing in a few basic details of the case and pressing go) provides a brief synopsis of the case and a link to a full text law report where one exists. Within Westlaw’s case locator lies a history button that gives the previous and subsequent history of a case; further, where a red flag appears, this indicates that a case has been reversed or superseded.

Like Lawtel UK, Westlaw UK consists of many large databases of case law, legislation, legal journals and articles and maybe seen as an alternative source of on-line research – if time allows, try experimenting with different on-line sources to see which research aid suits you the best.

5 Ensuring Research is Up To Date

Legal Research is of little use if it is out of date.  In these current times where the law is evolving and developing at such an rapid rate it can prove difficult ensuring that any legal research is accurate.

Many details in textbooks may even be out of date on publication day, therefore it is vital to try and keep updated as frequently as possible.  Lawtel maintains that its databases are updated daily and Westlaw ensures that its case law database is also updated on a daily basis with the legislation and journal databases being updated weekly.

One last piece of advice when undertaking legal research is to always ensure, as a discipline, that it is followed through to its logical conclusion.  If there are Cumulative Supplements or a Noter-Up service (as when using Halsbury’s Laws) then make use of such materials – it is quite usual not to find anything, but this is a good sign as no amendments or updates being made mean the law found is still good law.  However, where something new is found during the updating process it may lead a research trail taking a different path; such a path will invariably involve conducting fresh research on previously undiscovered material that ought to lead to positive and conclusive results.

Research skills can only be acquired, honed or further developed by actively and continually conducting legal research.   As neither law student or practitioner can possibly know every law that exists, good legal research skills are therefore essential.  In today’s legal landscape being a good lawyer is not only about having erudition in the law, but increasingly is about knowing where to look should problematic or convoluted scenarios arise.

The BSB, chaired by Baroness Ruth Deech, agreed in principle that barristers could be permitted to join in partnerships with other solicitors and others without having to qualify first as solicitors, under the regulation of the Solicitors Regulation Authority.

The BSB, which regulates the barristers’ profession, also agreed that barristers should be allowed to practise in more than one capacity at the same time – for instance as a part-time employee or consultant to a mixed practice of legal professonals while being in self-employed practice. Baroness Deech said that she believed the changes would “excite and do a lot for a profession”.

The changes, the result of a lengthy consultation and report put forward by a working group under Charles Hollander, QC, a member of the Board, will now be fine-tuned and the detailed changes to the code of conduct draw up. In the meantime, barristers will be able to seek waivers from the code to allow them to set up shop with other legal professionals or each other. In a series of other reforms that were also approved, the BSB agreed that self-employed barristers could share premises and office facilities with others, provided there is no sharing of work, profits or income of the business.

The BSB’s decisions come after more than two years of careful deliberation by the BSB and its Alternative Business Structures Working Group. Nicholas Green, QC, the Chairman-elect of the Bar, said: “The Bar Council very much welcomes these changes. The BSB’s decisions represent an historic moment for the Bar. The BSB has spent an enormous amount of time considering possible changes in the structure of legal practice in order to address liberalisation of the legal services market. The care with which they have investigated the issues reflects the importance of the BSB’s decisions.

The Bar Council is committed to the provision of the highest quality legal services to the public. We hope that by permitting changes to the ways in which barristers can practise, we shall build on our tradition of excellence while allowing more flexibility for practitioners. We believe the BSB’s decisions will be particularly welcomed by the publicly-funded Bar.”