Readers may recall Mark Fitch (pictured), the profession’s answer to The King, who graced these pages in January as lead singer of Elvis tribute band the Blue Sueders. Any fans who were deterred by the thought of travelling to Norfolk to see this white-suited wonder – Fitch is a litigation partner at Norfolk firm Hatch Brenner – will be only too pleased to hear that he has bagged a spot on Trafalgar Square’s fourth plinth on Thursday 16 July at 8pm. He urges ‘all my legal brothers and sisters in London to come along, if they’re not still sitting at their desks at 8pm, as I understand these City types have to do.’ Thank you very much, Mr Fitch.
As a chartered building surveyor of 40 years’ standing, my specialisms have been in the preparation of full building surveys (previously known as structural surveys) and what are known as ‘engineers reports’. The latter are usually consequent upon the requirements of a mortgage valuer, but increasingly I finding that it is clients who have had a full building survey undertaken that also require my services in this context. The Royal Institution of Chartered Surveyors definition of a full building survey is reasonably unambiguous and ‘sold’ to the public with the assurance that the surveyor who undertakes the report will cover all structural elements and conclude upon them. In fact, an increasing number of so called full building surveys, for which the client will have paid a substantial fee, seem to include a recommendation for the customer to obtain a whole raft of so called specialist reports to cover areas where the building surveyor ‘doesn’t feel confident’ to cover himself. During the last few years, I have seen clients recommended to obtain structural engineers reports in matters of wall cracks (some of them as simple as shrinkage at plasterboard sheet joints), employ trade specialists to cover anything from roof to wood beetle, and global warming specialists to cover the depth of insulation in the roof void! I have even been asked to provide a ‘specialist report’ on the matter of whether brickwork pointing was satisfactory. On another occasion I had to write a report as to whether there might be ‘rot in windows’, and on another occasion the surveyor recommended a specialist report to cover ‘the reasons behind misting up in double glazing units’. Accepting instructions to undertake a full building survey and then ducking major issues that under the RICS description should otherwise have been covered seems to me to be an infringement of trades description. I suspect one cause is that the public, after years of the house buyer’s report, wants something better. Consequently, there may be a propensity for surveyors who would not normally have touched a full building survey to accept instructions in the knowledge that they can defer large parts of what they should have covered to third-party specialists This is bringing the profession into disrepute and should be stopped. A full building survey is just that – a thorough investigation of the building backed by sufficient knowledge to enable the client to decide whether or not to proceed with a purchase. I accept that there are certain aspects of a structure that will require specialist reports such as drains, electrics or heating performance, but in terms of structure it really should be down to the surveyor. RD Wolstenholme, Wolstenholme Chartered Building Surveyors, Halifax
The appellant father (F) appealed against a decision permitting the respondent mother (M) to remove their child (D), who was nearly five, from the jurisdiction of England and Wales. F and M had been married for a short period. They had a difficult relationship which came to an end through divorce. M remarried. She wished to live with her husband, a doctor, in Australia and take D with her. Directions given in respect of M’s application to remove D from the jurisdiction dealt with, among other things, the filing of a Cafcass report. At the hearing of the application, the report was not ready. F, who appeared in person, cross-examined the Cafcass officer who was responsible for producing the report. The judge initially wanted a full report but then changed her mind. However, later she apparently said that the Cafcass evidence was the only outstanding issue. The judge relied on other evidence when arriving at her decision about removal. The judge also dealt with the contact that F should have with D, including the duration and frequency of contact. F submitted that (1) he did not cross-examine the officer at length because he thought that a full Cafcass report would be provided, and so the hearing was unfair as his views and D’s views were not put forward; (2) there was a lack of consideration of the impact on the relationship between him and D arising from D’s removal. Held: (1) The judge did not have the benefit of a full Cafcass report and did not adequately comment on it. The judge had made her decision without all the relevant factors fully in mind. In those circumstances, justice might not be seen to be done. The judge would have to reconsider her decision in light of a full report, and if she arrived at the same conclusion she should reconsider the question of contact. (2) In view of the case of Payne v Payne  EWCA Civ 166,  Fam 473, little attention was paid to the effect of the removal of a child on the parent who was left behind, and too much attention was paid to the parent leaving the jurisdiction. However, Payne was binding on the judge who was entitled to find as she did in respect of the impact on the relationship between F and D, Payne considered. Appeal allowed. Re D (a child): CA (Civ Div) (Lords Justice Wall, Aikens): 8 April 2010 Joy Brereton for the appellant father; in person for the respondent mother. Cafcass – Children – Contract orders – Removal from jurisdiction
Join the Law Society Gazette Legal Aid LinkedIn sub-group. Tomorrow sees the Trades Union Congress ‘March for the Alternative’ rally, taking place in central London. It is predicted that tens of thousands will turn up to protest against the planned public sector spending cuts, in what is expected to be the largest TUC event for decades. The Law Society will be represented, through its Sound Off for Justice campaign, alongside supporters of the Justice For All campaign. They will be protesting against the government’s proposals to reduce legal aid eligibility and scope. Lawyers are not generally known for their militancy. The Gazette reported last month that thousands of French judges and lawyers had taken to the streets to protest against remarks made by president Nicolas Sarkozy, in which he declared a murder suspect ‘presumed guilty’ before trial and criticised ‘lax’ judges. But this is not France. Yet it is indicative of the strength of feeling among legal aid lawyers that so many are expected to give up their Saturday to make their voices heard. And they plan not just to shout and wave banners – but also to sing. A Sound Off For Justice choir who will ‘sound off’ along the route of the demonstration, singing the nation’s favourite protest songs. Have we ever seen the like? People following the campaign on Facebook, can suggest their favourite protest songs for the choir to sing. For one day only, at least it will not be the Ministry of Justice calling the tune.
The Solicitors Regulation Authority has given a thumbs up to ‘work-based learning’ as a route to qualification without the need to secure a training contract after analysing the results of a two-year pilot scheme. A report on the pilot results, produced by Middlesex University, concluded that the scheme had been successful in its approach to assuring quality. However, it made a number of recommendations for a more robust and integrated set of outcomes to assess trainees’ competence. The report recommended that more work be undertaken in setting out the skills and attributes needed for qualifying as a solicitor. It suggested that a credit system should be introduced to assess incremental learning, and to open the door to more flexible routes to qualification and transfer between professions. The report suggested that the work-based learning portfolio used in the pilot should be retained and developed as an on-going learning journal. It added that the SRA should address barriers to entry at secondary school level when choices of university, courses and future careers are still being formed. Susan Bews, chair of the SRA’s education and training committee, said: ‘The WBL pilot has been extremely valuable and we are grateful to those firms and trainees who took part in the exercise. ‘The work will improve the rigour of our assessment processes and has the potential to offer a wider range of trainees the opportunity to complete their training through alternative routes. ‘There are two continuing strands to the pilot involving paralegals, and the combined route where a single provider is responsible for the law degree, Legal Practice Course and assessment which will be finalised in 2012. ‘We now have a firm basis on which to develop our work further, and this will be fed into the overall Education and Training review which we, the Bar Standards Board, and ILEX Professional Standards are undertaking.’ Seventy-nine students took part in the pilot, of whom 70 passed following completion of the course in December 2010. Some firms nominated candidates to whom they had already offered training contracts. Other participants were volunteers working in law firms or in-house legal departments in roles that otherwise would not have led to qualification. In both cases, participants were assessed either by their employer or by an external provider against a set of eight learning outcomes involving practical legal experience. Read the work-based learning report.
The case of Gary McKinnon and the unpopular US/UK treaty dominated coverage of the extradition review in the mainstream press. So it made a pleasant change to read Joshua Rozenberg’s piece in the Gazette. While I share concerns about the treatment Mr McKinnon might face if extradited, the problems with our extradition laws do not start and end there. I do not agree with everything in the review but it did make some very positive recommendations on the European Arrest Warrant, responsible for over 1,000 extraditions from the UK last year (compared with about 10 a year to the US). If implemented, these would address some serious cases of injustice. Two years ago, for example, our client Andrew Symeou was extradited to Greece where he spent months in one of Europe’s worst prisons awaiting trial. Thankfully, Andrew was cleared when the trial finally started two years later. The review not only called for the EU to work to improve Europe’s detention regimes, but also for a power to delay extradition until the country is trial-ready. This would enable someone like Andrew to wait for trial at home, instead of being sent to languish in a foreign jail. These kinds of proposals lack the drama of ‘wholesale reform’ but they would address some real problems with our extradition laws, while allowing us to retain the kind of effective extradition system we need to tackle cross-border crime. It would be tragic if they were completely obscured by the disappointment of those who had hoped the review would back their calls to tear up the US treaty. Jago Russell, chief executive, Fair Trials International, London EC4
Roman Catholic church – Liability for tortious acts of priest The claimant alleged that she was sexually abused and raped by a Roman Catholic priest, B, at a time when she was resident at a children’s home between May 1970 and May 1972. The home was operated and managed by the first defendants, a religious order of nuns. The second defendant stood in the place of the diocesan bishop at the material time. The claimant claimed damages for personal injury. An issue arose as to whether the nature of the relationship was one to which vicarious liability might attach. The second defendant contended that B was not its employee and that vicarious liability could not attach to the relationship which existed between them. The court ruled: in examining whether party A was vicariously responsible for the acts of party B, there was a two-stage test. The first stage involved an inquiry into the relationship between A and B; whether it was a relationship to which the principles of vicarious liability might attach. The second involved an inquiry into the act or omission of B which was in question; whether the act was within the scope of employment or other relationship. It was the nature and closeness of the relationship which was the test at stage one. That close connection might be easier to recognise than to define. The court would look carefully at the full nature of the relationship. All the surrounding facts and circumstances were to be considered. Those would include many of the matters which were of relevance also at stage two. Of particular relevance to stage one would be the nature and purpose of the relationship: whether tools, equipment, uniform or premises were provided to assist the performance of the role; the extent to which the tortfeasor might reasonably be perceived as acting on behalf of the authoriser. That was not an exhaustive list. Every case would be fact-specific and other factors would become apparent as and when they occurred. The extent to which there was control, supervision, advice and support would be of relevance but not determinative. Where the tortfeasors actions were within the control and supervision of the third party, the relationship would be close. Control was just one of the many factors which would assist a judge to the just determination of the question. That question would be whether, on the facts before the court, it was just and fair for the defendant to be responsible for the acts of the tortfeasor, not in some abstract sense, but following a close scrutiny of the connection and relationship between the parties and the connection between the tortious act and the purpose of the relationship/employment/ appointment (see - of the judgment). The relationship between B and the defendants was significantly different from a contract of employment. There was no real element of control or supervision, no wages and no formal contracts. However, B was appointed by and on behalf of the defendants. He was appointed to do their work, to undertake the ministry on behalf of the defendants for the benefit of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the defendants. It was they who appointed him to the position of trust which he so abused. The nature of the relationship was one to which vicarious liability might attach. The activities of B had been set in motion by the defendants in pursuance of a relationship into which the defendants had entered for their own benefit. It was their empowerment of B which materially increased the risk of sexual assault, the granting of the power to exploit and misuse the trust which the defendants had granted to him. It was the defendants who had introduced the risk of wrongdoing. By appointing B as a priest, and thus clothing him with all the powers involved, the defendant created a risk of harm to others. The empowerment and the granting of authority to B to pursue the activity on behalf of the enterprise were major factors. Whether or not the relationship might be regarded as ‘akin to employment’ the principal features of the relationship dictated that the defendants should be held responsible for the actions which they initiated by the appointment and all that went with it (see , - of the judgment). GE v English Province of Our Lady of Charity and another: QB (Mr Justice Macduff): 8 November 2011 Elizabeth-Anne Gumbel QC and Justin Levinson (instructed by Kathy Perrin) for the claimant; Lord Faulks QC and Nick Fewtrell (instructed by CCIA Ltd) for the defendants.
To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access SIGN UP TODAY Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters
Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Get your free guest access SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community
Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community