Echoing Lord Justice Jackson on alternative dispute resolution

first_imgHere is one of the big issues facing the EU: how do you successfully communicate laws and policies to more than 500 million citizens in 23 official languages?I shall take as my example alternative dispute resolution (ADR). It is particularly topical this week given the recommendations on the subject by Lord Justice Jackson’s civil litigation costs review. The EU undertakes a huge amount of work in ADR, probably nearly all unknown to most solicitors. This is true of so much of Europe’s work, and represents the great disjuncture between the institutions and the citizens they are trying to serve. (In this particular example, the matter is not helped by the fact that ADR is bundled along with other so-called consumer affairs in the directorate that deals with health. It is therefore difficult to find for the average citizen, who could be forgiven for thinking that ADR would be dealt with along with justice matters.) I was interested to see that Lord Justice Jackson finds that even UK schemes appear to be not well known to UK judges and lawyers, and recommends a serious campaign and authoritative handbook on ADR. My attention was drawn to a very interesting report published recently by the European Commission on the use of ADR in the EU. Only aficionados will read all 500 pages, but there is fascinating data along the way: Germany is the country with the most ADR schemes (247), followed by Italy (129) and Spain (76). The UK comes fourth with 43. However, the data on the number of schemes need to be properly interpreted, because some countries, for instance Germany, have decentralised their schemes, whereas the Netherlands has 44 different consumer schemes gathered up into one body. It appears that the UK’s Financial Ombudsman Scheme is by far the largest ADR scheme in the EU, with more than 100,000 cases dealt with on average per year. The vast majority of the ADR procedures are free of charge for the consumer, or of moderate costs below €50, and are mostly decided within 90 days. The number of cases in the EU has increased over recent years: from about 410,000 in 2006, to 473,000 in 2007, to an estimated 530,000 in 2008. The European Commission has published two sets of recommendations in relation to ADR: one in 1998 for those schemes where a third party proposes or imposes a decision to resolve the dispute (such as arbitration), and one in 2001 for those schemes which involve consensual settlement procedures where the third party facilitates the resolution of a consumer dispute by bringing the parties together and assisting them in reaching a solution by common consent (such as mediation). The commission has also supported the development of a code for mediators. So keen is the commission on ADR that it has set up, together with the member states, a network of European Consumer Centres (ECC-Net) as a tool to have better informed and educated consumers, and to help them get the appropriate redress in case of a violation of their rights as consumers in cross-border transactions. They advertise themselves as being able to solve questions like ‘who can you turn to if you have a problem with a product you bought in another European country?’ The member organisation for the UK is the UK European Consumer Centre, run by the Trading Standards Institute. Maybe you knew all this already, but I didn’t. Our tax pounds are going on a series of very worthwhile schemes to help citizens. But almost no one knows about them. I come back to the question I raised at the start: how do you successfully communicate laws and policies to more than 500 million citizens in 23 official languages? In particular, how do you do so through the haze of a political discourse where the EU is being blamed and ridiculed on a daily basis? Of course, the EU could do a million times better in selling itself, and journalists could occasionally change the lens through which they view the EU from ‘there go the lunatics again’ to ‘this is rather interesting and worthwhile’. But I believe that it is our governments (and I am referring to all of them, not just the UK’s) that are not serving us well. They are contributing a gigantic amount of our money and energy to promote many good things at EU level, including access to justice. But because they want to distance themselves from the EU to serve their own immediate interests, they are effectively wasting the money, because they see no advantage in boldly advertising EU initiatives which may help us. My plea is that when the government considers and implements Lord Justice Jackson’s proposals, they at least include the EU’s ADR initiatives in any future proposals for a serious information campaign and authoritative handbook as recommended by him. Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents more than 700,000 European lawyers through its member bars and law societieslast_img read more

Insolvency remuneration

first_imgIn recent years, there has been a good deal of concern as the result of a fairly general perception that costs in insolvency cases have reached an unacceptably high level.’ So said Mr Justice Ferris in Mirror Group plc v Maxwell and others (No 2) [1998] 1 BCLC 638. The concern remains, for while the overwhelming majority of insolvency practitioners do decent work at reasonable costs, there remains a minority of practitioners who continue to overcharge. In the light of the changes made by the Insolvency (Amendment) Rules 2010, it is appropriate to begin with a brief overview of the main provisions of the Insolvency Act 1986 and the Insolvency Rules 1986 (as amended) which deal with office-holders’ ­remuneration. The remuneration of a supervisor of an individual voluntary arrangement is still governed by the terms of the proposal but may be challenged under section 263 of the act. Rules 6.138-6.142C now govern the remuneration of a trustee in bankruptcy. Remuneration may now be charged as a percentage of the value of assets realised or distributed, or both in combination, as well as by reference to ‘the time properly given by the insolvency practitioner (as trustee) and his staff’ in dealing with the bankruptcy (italics added here, as a time-cost resolution is not carte blanche to charge for time spent, only time properly spent), or ‘as a set amount’ (rule 6.138). Where remuneration is not fixed on those bases a scale rate applies (rule 6.138A). Remuneration falls to be determined by the creditors’ committee (rule 6.138(2) & (3)C), which may determine it on one or more bases. Different bases may be fixed for different work done and different percentages may apply. Rules 6.140A and 6.141A allow the trustee recourse to a meeting of creditors and to the court, while rule 6.142 allows the creditors and the bankrupt to apply where it is contended that the remuneration or other ‘expenses incurred by the trustee’ are excessive or inappropriate. Relevant matters to be taken into account are set out in rule 6.138(4). Apart from giving greater flexibility as to the bases on which remuneration may be charged, the amended rules now contemplate the possibility of the courts dealing with expenses, including legal fees, as well as remuneration proper. Rule 6.56 deals with the remuneration of an interim receiver; rule 6.167 that of a special manager. The remuneration of the supervisor of a company voluntary arrangement is dealt with much like that of the supervisor of an individual arrangement (see section 7 of the act as to possible challenge). Rules 2.106-2.109C deal with the remuneration of an administrator. They operate in much the same way as those governing the remuneration of a trustee. (Note rule 2.109(1A) as to ‘expenses incurred by the administrator’ and rule 2.109C as to apportionment). Rules 4.127-4.131C govern the remuneration of a liquidator and again operate very much like the trustee provisions. (Note as to expenses rule 4.131(1A)). The remuneration of a ­provisional liquidator is governed by rule 4.30. None of those changes, however, affects the fundamental propositions enunciated by Mr Justice Ferris, and subsequently enshrined in the Practice Statement: The Fixing and Approval of the Remuneration of Appointees (2004). Mr Justice David Richards, sitting in the Court of Appeal, remarked in Brook v Reed [2011] EWCA Civ 331 (after setting out the relevant rules) that Mr Justice Ferris’ judgment ‘has since [1986] been treated by other judges as applicable to…office-holders’ in general. He then went on to deal with the history that led to the Practice Statement and the hitherto unexplored issue of its force and application. After referring to a number of authorities where the courts had had regard to it, he said: ‘I conclude that the stage has been reached where a court hearing an application to fix or to challenge the remuneration of an office-holder should proceed on the basis that the Practice Statement is to be applied, except in so far as in the circumstances of the particular case the party objecting to its application shows that it would be wrong in principle to do so. ‘In my judgment, the statement of guiding principles in the Practice Statement is a correct statement of the principles generally applicable…’ The judge then turned to the facts. Mrs Brook, who ran a small flower shop, was made bankrupt for non-payment of VAT. Her creditors’ claims amounted to about £40,000. She applied to annul the bankruptcy order, and, as so often, it was in that context that the remuneration dispute arose. Unfortunately, Mrs Brook did not put in detailed points of dispute, so District Judge Barraclough allowed the trustee’s remuneration and expenses. There was an appeal to Judge Behrens, sitting as a Deputy High Court judge. He sat with two assessors, the regional costs judge for Leeds and a Deputy District Judge who specialised in costs cases. The judge was critical of the level of remuneration, adopting the district judge’s criticism that they ‘seemed disproportionately high’. He assessed the trustee’s remuneration and disbursements in the total of £23,855.24. The costs of the trustee’s solicitor were reduced from £23,086 to £10,038.50. Neither the district judge nor the judge on the appeal had been referred to the Practice Statement. However, while Mr Justice David Richards found that ‘the principles in the Practice Statement should have been expressly applied’ he went on to say, ‘I do not consider that this omission provides a ground on which the appeal should be allowed’ since ‘Judge Behrens applied what were fundamentally the relevant criteria to the facts of the case.’ Accordingly the appeal was dismissed. Stephen Baister is the chief bankruptcy registrar of the High Court Hunt v Yearwood-Grazette [2009] EWHC 212 (Ch), [2009] BPIR 810 was an extreme case. Again the bankrupt had cleared the bankruptcy debts and wanted to settle the trustee’s fees with a view to annulment. In April 2006, the trustee said he was owed £10,000 in remuneration. This was disputed by the bankrupt, so the trustee applied for an order to fix his fees and remuneration and for an order for possession and for sale of the bankrupt’s property. By the time of the application, the trustee was claiming £19,611.75, including £6,345.88 in legal fees. District Judge Sterlini disallowed all but £3,396.43 on the basis of inadequate information, and twisted the knife by ordering the trustee to pay over £4,800 as the assessed costs of the application before him. Mrs Justice Proudman cited with approval passages from the decision of District Judge Sterlini: ‘Simply asserting that X amount of time has been expended by the trustee in undertaking work is not of itself sufficient. ‘There has to be more than that. The question then is has the trustee provided more than that? In my judgement, the answer is no. ‘The trustee has not provided sufficient evidence to satisfy the requirements set out in the Practice Direction. ‘The evidence which was provided is in the form of a schedule which has, in some cases, extremely bland descriptions with no explanations as to (and I consider this to be very significant) the benefit to the bankruptcy of any specific step. ‘I am entitled to infer that there is some benefit to the bankruptcy from the work that was done by the trustee, but I am not satisfied that the evidence here even gets the trustee off the ground. ‘It is more than surprising, it is shocking, that having been given an opportunity since October of last year to file just such evidence, which clearly sets out in a narrative format with an explanation, as to why each step or each particular piece of work was required in more general terms, but, certainly in the form of narrative that somebody could understand, that has not been done. ‘I take the view, therefore, that the trustee has failed to provide an adequate explanation […]’ Expensively for the trustee, the appeal was dismissed.last_img read more

Be careful what you wish for

first_imgSubscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN 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 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 communitylast_img read more

RWE Innogy contracts Daewoo to build an offshore construction ship

first_imgThe contract also includes the option for two further identical construction ships. The value of the contract for each ship is around EUR100 million (USD148 million). The first ship should be completed in 2011. Prof. Fritz Vahrenholt, Chairman of the Board of Directors of RWE Innogy GmbH: “The building of our own construction ships will overcome one of the most important supply bottlenecks we face in the construction of wind farms at sea. These ships will give us a decisive time and cost advantage in the North Sea and further afield in implementing our ambitious plans to expand wind energy.” The ships ordered by RWE Innogy are the first of their type in the world. They are able to transport and install the largest available offshore wind turbines including foundations. With a length of 109 m and a width of 40 m, the ships can simultaneously transport and install up to four turbines in the multi-megawatt class. Featuring satellite control, these ships can be fixed with centimetre-precision for construction work at sea and operate in water depths of more than 40 m. “The construction ships of this special design are ideally suited to the construction of marine wind power plants. Unlike the vessels which were previously used, they are able to successfully install the largest wind turbines currently available in the 5 and 6 MW class even under the harsh conditions which are often encountered offshore,” underlines Prof. Martin Skiba, Head of Offshore Wind at RWE Innogy. The ship capacities commissioned in the course of a worldwide invitation for tender are intended for use in the construction of the offshore wind farms planned by RWE Innogy. The company currently has plans for two wind farms in the German part of the North Sea, namely “North Sea East” (295 megawatt) and “Innogy North Sea 1” (960 megawatt). Of the Welsh coast, RWE Innogy is planning construction of an offshore wind farm to be called “Gwynt y Môr” (576 megawatt). Only last week that the company commissioned the “Rhyl Flats” wind farm (90 MW) in Liverpool Bay off the Welsh coast. The company has already been operating the “North Hoyle” offshore wind park (60 MW) there since 2004. RWE Innogy also has a 50 percent share in the “Greater Gabbard” wind farm off the East coast of England. This wind farm is currently under construction and will have a total capacity of more than 500 MW on completion in 2011. Furthermore, RWE Innogy is involved in the construction of the first Belgian offshore wind farm, “Thornton Bank” (300 MW). The first expansion phase of this wind farm is already in commercial operation with an installed output of 30 MW.last_img read more

Peters & May breaks its record

first_imgFollowing the 2018 Caribbean sailing season, which usually lasts from the end of November until June, Peters & May loaded the yachts on to the vessel in Fort Lauderdale and Antigua for one of its seven sailings back to Rotterdam and Southampton. The shipment has surpassed Peters & May’s record of transporting 45 yachts aboard a single vessel in July last year. HLPFI readers will recall, Peters & May loaded the yachts onboard Hansa Heavy Lift’s vessel HHL New York.www.petersandmay.comlast_img read more

Client did not give informed consent to deductions, costs appeal hears

first_imgAn ‘unsophisticated’ personal injury claimant had not given her informed consent to solicitors deducting more than £1,000 from her damages, the Court of Appeal has heard.  Lawyers for Nicky Herbert, a former client of Liverpool practice HH Law, said she had not understood the implications of the terms and conditions when she signed a retainer with the firm. She successfully challenged the bill in the county court and had that decision upheld on appeal. Now the firm has gone to the Court of Appeal, warning that thousands of potential cases seeking refunds could be created if judges rule for the client. Herbert, a baker, was a personal injury claimant whose £3,400 settlement was reduced by almost £1,200 after deductions for the solicitor’s success fee and after-the-event insurance premium. For Herbert, PJ Kirby QC, instructed by Leeds costs recovery specialist JG Solicitors, told the court it was not clear to her what the deductions would be from the outset.  ‘We are talking about an unsophisticated client,’ he said. ‘Is the client immediately supposed to understand the 25% [deduction from damages] is in addition to the ATE premium? That is not clear.  ‘One of the requirements of a solicitor for the client to have informed approval is to make things clear to the client. It would require an explanation as to why the success fee was set at a particular level and should also require a list of what is included in the [25%] cap.’ Kirby said there was nothing in the files to suggest the solicitors had discussed costs with the client, and no explanation what it meant by charging a 100% success fee or how that would be calculated.  He added: ‘Solicitors are supposed to send out estimates and documents setting out charging rates. Were this appeal to be allowed the consumer’s right, which has been there for several hundred years, to challenge the solicitor’s bill will have been greatly abrogated.’ Kirby said the client would clearly have challenged the £349 ATE insurance premium had it appeared as an item on her bill, and ‘undoubtedly’ having seen the terms of the cover it would have been questioned. He said the court had been right to treat the ATE as a disbursement and that insurance was ‘part and parcel’ of the costs package presented to her by the firm.  Judgment was reserved by the Master of the Rolls.last_img read more

Dominican among 11 Climate Innovation Center winners

first_img Share LocalNews Dominican among 11 Climate Innovation Center winners by: – July 10, 2014 Share Sharing is caring! Tweetcenter_img 374 Views   no discussions Share Gail Defoe (Thngives photo)Dominican Gail Defoe is among eleven (11) Caribbean entrepreneurs who will be awarded grants of up to fifty thousand US dollars from the World Bank’s Climate Innovation Center for winning in its regional proof of concept competition.The Caribbean Climate Innovation Center (CCIC) — a project of the World Bank and its global entrepreneurship program infoDev, announced the eleven winners of its first regional Proof of Concept (PoC) competition on July 10, 2014. Ms Defoe was selected as a winner for her home grown organic bio-fertilisers concept.The successful applicants will receive grants of up to USD 50,000 to develop, test, and commercialize innovative, locally relevant climate technology solutions.Officially closed on April 20, the PoC has received more than 300 applications from 14 countries, including territories within the Caribbean Community (CARICOM) and the Organization of Eastern Caribbean States (OECS). Entrepreneurs were asked to submit proposals for innovative products, services, or business models in sustainable agribusiness, water management and recycling, solar energy, energy efficiency, and resource use sectors. “This overwhelming response is very encouraging for the future of the CCIC and its activities,” said Everton Hanson, chief executive officer of the Caribbean CIC. “The process was very competitive and even the unsuccessful applicants submitted interesting ideas that show great potential,” Hanson added.The 11 winning proposals represent seven Caribbean countries — Jamaica, Trinidad & Tobago, Dominica, Antigua and Barbuda, Saint Kitts and Nevis, St. Lucia, and Belize. Particularly noteworthy is also the high engagement achieved among women, with four winning concepts submitted by female applicants.The other ten winners and their concepts are as follows;Antigua & Barbuda – Elliot Lincoln -Biofuels from microalgae cultivation: CO2 sequestration & wastewater treatmentAntigua & Barbuda – Mario Bento – Desalination Systems for Small Rural Communities; Low Cost, Solar-Powered, Brackish Water Reverse Osmosis (RO).Belize – Santiago Juan Alternative Animal Feed using vertical farming techniquesJamaica – Shirley Lindo – Organic Soil Conditioner & Fuel Briquettes from Castor Oil WasteJamaica – Brian Wright – The Pedro Banks Renewable Energy ProjectJamaica – Harlo Mayne – H2-Flex Hydrogen Hybrid ProjectJamaica – Kert Edward Fiber-Optic Solar Indoor Lighting (FOSIL)St. Kitts-Nevis – Donny Bristol Recyclables Expansion & Commercialization Project (Focal Area Resource Use Efficiency/Reuse and Recycling)St. Lucia – Patricia Joshua – Development of Sustainable Agri-business Paper ProductsTrinidad & Tobago – Suzanne Thomas – Mobile modularized PF bio-digester The PoC grants are designed to help entrepreneurs prove the value of their business concept by providing the resources and the skills necessary to prototype, test, develop, and commercialize services and products. In addition to funding, the PoC winners will also get access to the suite of advisory services offered by the CCIC, as well as considerable exposure and networking opportunities through the center’s media events.Dominica Vibes Newslast_img read more

Guimarasnon biker not yet accredited for Asian Games

first_img“We are appealing to Marella na baka magbago ang isip niya since siya pa din ang nakalist sa INASGOC,” said Tolentino.“We are hopeful naman that Belgira will be accredited since it was the INASGOC who requested her participation due to the lack of participants in the mountain bike downhill event,” he added.Salamat, the 2015 Southeast Asian Games Individual Time Trial champion, failed to get a permit from the University of the East where she is taking up dentistry.Meanwhile Tolentino revealed that BMX rider Daniel Caluag changed his mind and decided to participate in the Asian Games after settling the issue with his travel expense.The Philcycling official said they will also push for Caluag – the lone gold medal winner for Team Philippines in the 2014 Asian Games – to be the delegation’s flag-bearer.Tolentino said they wanted to “recognize his (Caluag) achievement (during the 2014 Asian Games) since siya lamang ang nag-deliver ng gold.”/PN Mountain biker Lea Denise Belgira of Guimaras province is not yet accredited to participate in the 2018 Asian Games, a Philcycling official says. MANILA – Mountain biker Lea Denise Belgira’s participation in the women’s event of the 2018 Asian Games remains doubtful.The Integrated Cycling Federation of the Philippines, or Philcycling, was still seeking the accreditation of the Guimaras native more than a week before the games start in Indonesia.Belgira, a gold medal winner during the 2017 Asian Mountain Bike Series in Malaysia, was a last-minute addition to the Philippine team after veteran Marella Salamat pulled out.Philcycling president Abraham “Bambol” Tolentino told Sports Radio 918 that they were still pursuing Belgira’s accreditation before the Indonesia Asian Games 2018 Organizing Committee (INASGOC).last_img read more

Sealy claims seventh career GSC Defender of the Week award

first_img Share Sealy claims seventh career GSC Defender of the Week award    BIRMINGHAM, Ala. – For the fifth time this season and the seventh time in his career, West Florida men’s soccer goalkeeper Ramon Sealy (Bodden Town, Cayman Islands/John Gray HS) was named Gulf South Conference Defender of the Week.  Sealy earned the award after making four saves in the Argonauts’ 1-1 tie against Union on Saturday.The defender of the week award is the fifth this season for the Argonaut keeper, and with seven in his career he now ties former Montevallo goalkeepers Melford James, Jr. and Raven Keet for the league record.Sealy has seen action in nine games this year for the Argonauts (8-2-2, 6-0-2 GSC), totaling a record of 4-1-2 with one shutout.  He is averaging 1.00 goals allowed per game with a .765 save percentage, and both marks lead the league.The Argonauts will take to the road this weekend for their final regular season road trip, facing Christian Brothers on Friday, Oct. 19 and Delta State on Sunday, Oct. 21.  For information on all UWF athletics, visit www.GoArgos.com. #ARGOS#GSC Release  Print Friendly Versioncenter_img Sealy has allowed just eight goals this season (Photo by Bill Stockland) last_img read more