Chief Constable and Police Commissioner face court action over persistent data and information breaches

County Court claims have been filed naming Julia Mulligan, the Police and Crime Commissioner for North Yorkshire and her Chief Constable, Dave Jones, as defendants over persistent breaches of both the Data Protection Act, 1998 and the Freedom of Information Act, 2000.

The court action in both cases has been taken out by investigative journalist, Neil Wilby.

Recovery of costs of the time spent dealing with both the PCC’s office, and the police force’s Civil Disclosure Unit, over their failure to comply with the law over two data subject access and eleven freedom of information requests is claimed.

One information request made by Mr Wilby took 373 days before a response was given. The request simply asked for the number of sergeants in the force with the surname ‘Smith’.

A court order compelling the Commissioner and the Chief Constable to lawfully dispose of the data and information requests within 14 days is also sought.

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The PCC’s acting Chief Executive, Simon Dennis, initially instructed Joint Corporate Legal Services, which serves both the police force and the PCC’s office, to respond to the claim.

Acting Force Solicitor and Head of Legal Services, Jane Wintermeyer, confirmed receipt of those instructions from the PCC and intimated that her department would also deal with the claim against the Chief Constable, once it has been served on him by the court.

Mrs Wintermeyer also says: “The Civil Disclosure Unit are (sic) continuing to deal with the  outstanding Subject Access Request, FOI’s and Reviews and will revert as soon as they can”. Which is, on any reasonable view, a frank admission that the PCC and the force are operating outside of the law in dealing with Mr Wilby’s requests.

However, following objections raised by Mr Wilby to both Mr Dennis and the Chief Constable, Mrs Wintermeyer was replaced by an outside firm of solicitors. Leeds law firm, Weightmans, has filed the acknowledgement of service with the court. The protest against the involvement of Mrs Wintermeyer was grounded in the fact that she is presently the subject of two serious, and unresolved, conduct complaints.

The involvement of Weightmans has already proved controversial. Their senior partner, Nick Collins, who is handling the claim had, in early skirmishes, made the quite astonishing assertion that ALL of Mr Wilby’s freedom of information requests were classified by both North Yorkshire Police and the PCC’s office as “vexatious”. He has since withdrawn the allegation, confirmed that NONE of the requests were in fact vexatious, and offered a retraction and an apology. He claims that he was NOT acting on instructions from the police or the Commissoner’s office when making this outrageous and offensive claim – and that he simply made it up himself.

Unperturbed, the errant lawyer then ventures into the area of “vexatious” data subject access requests. Data access is governed by S7 of the Data Protection Act and the concept of a “vexatious” request under the Act would test even the most experienced data practitioners. There is certainly no legal precedent that is readily accessible and, despite being invited to provide one, Mr Collins has so far declined to do so.

As Mr Wilby has only ever made one data request each to North Yorkshire Police and the PCC – neither of which are finalised appropriately several months later – it is difficult to see where Mr Collins is going with this inference.

There has, however, been no retraction of another wild, unevidenced assertion by Mr Collins to the effect that the “large” number of information requests made by Mr Wilby (a total of nineteen in two years by an investigative journalist to two different data controllers) was a significant factor in causing 500+ other requests per year to be finalised outside of the statutory period. Made all the more incredible by that fact that published data shows non-compliance was at its worst before Mr Wilby made his first of those requests in September 2014.

To top that all off, Mr Collins asserts that his clients have not broken the law: In the face of the most compelling and overwhelming evidence. He is refusing to say whether he is acting on instructions from the police, and the PCC, in order to make such claims or, as with the false ‘vexatious’ submission, he has simply made this up himself, as well.

But the biggest difficulty of all faced by Mr Collins is that he has signed Statements of Truth, below the two Defence documents filed on behalf of the Chief Constable, and the Police Commissioner, that are both palpably false. It would also be difficult to persuade a judge that he had an honest belief in their truth, given what he has alleged and then later admitted.

He is presently the subject of a complaint to the Solicitors Regulatory Authority – and Mr Wilby has invited the court, in his Reply to Defence, to apply sanctions against Mr Collins under Civil Procedure Rule 32.14 which deals with false witness evidence (see below).

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All these shenanigans, which have also included peremptory, dark threats as to the financial consequences to Mr Wilby of not abandoning the claims, have already cost the North Yorkshire precept payer a sum estimated to be in excess of £20,000. Weightmans were invited, as a matter relevant to the issues in dispute, and to the proportionality of their defence, to state exactly how much has been charged. They have, so far, declined to do so. Indeed, they didn’t even have the courtesy to acknowledge the email bearing the request.

Poor communication, and lack of candour, by Mr Collins is a recurrent feature of Mr Wilby’s interaction with him, which reflects poorly on the professionalism of that law firm. That is also, it seems, reflected higher up the Weightmans food chain. In an increasingly tetchy interchange with their partner responsible for regulatory matters, James Holman, the firm refused to tell Mr Wilby, even when pressed on the subject, whether Mr Collins faced sanction internally over his conduct. In those circumstances, the working hypothesis has to be that there is nothing of this nature in the offing.

Mr Holman also insisted that having to be nudged for a response over a complaint of this seriousness did not constitute discourtesy. Mr Wilby has, sensibly, agreed to disagree with him.

Weightmans have, however, pledged to co-operate with the SRA’s investigation into the conduct of Mr Collins.

Freedom of information requests were made necessary to establish how much is being spent on defending these claims, by the police and the PCC, via their big city lawyers. Full details of both of these requests can be read here and here. The information requests also sought to establish which senior NYP and NYPCC officers are giving instructions to Mr Collins. Which, in itself, was expected to be revelatory. No information has been forthcoming. The original requests were the subject of an internal review prior to the matter being referred as a complaint to the Information Commissioner’s Office (ICO).

Some weeks ago, in an effort to resolve matters, Mr Wilby suggested that the total sum sought, in both of his claims, for his loss of earnings and disbursements (the grand total of £385), be donated to a charity of the Chief Constable’s choice. That, so far, has proved unacceptable to the profligate Chief, and his Commissioner, as a means of settling the matter.

There is also an issue with the form of words concerning the declaration of the court, sought by Mr Wilby, to the effect that the police and the PCC have both acted unlawfully, and the future remedy for such conduct. The fact that both the police and the PCC have continued to routinely break the law SINCE court proceedings were issued only serves to exacerbate the issue.

Interestingly, a complaint made by Mr Wilby in July, 2015 concerning Mrs Mulligan’s failure to hold the Chief Constable to account over Freedom of Information Act failings was NOT upheld by the Police and Crime Scrutiny Panel for North Yorkshire (PCP).

Between April 2012 and June 2015, NYP’s Civil Disclosure Unit failed to determine 1,558 (One thousand five hundred and fifty eight) freedom of information requests within the statutory 20 working day period. These figures, although known at the time by Mrs Mulligan, were not disclosed to the PCP in her formal response to Mr Wilby’s complaint. That matter will be re-addressed at the conclusion of the present court proceedings. Alongside a complaint from another journalist, Nigel Ward, who has an unfinalised information request dating back to 22nd February, 2015. Yes, 2015.

Mrs Mulligan now also has the unenviable record of a 100% failure rate over compliance in finalising data access requests. Over the past three years, there have also been a staggering 103 non-compliant data access requests finalised by the force. That might be a tough one for the PCP to find a workaround, when that fact is put to them formally about their ‘open and transparent’ PCC.

At a hearing on Monday 10th October, 2016, in  Huddersfield County Court, applications by the two policing chiefs to (i) transfer the claims to Leeds County Court before HHJ Gosnell (ii) strike out the claims or, (iii) alternatively, grant summary judgement in their favour were all dismissed.

The district judge found that there was a case to answer on the alleged breach by the chief contsable; an admission of breach by the police commissioner. It was also a finding that the matters concerning the information requests fell away, as their had been no formal application to allow in amended particulars, filed and served on 1st September, 2016, that went beyond the police chiefs’ defence grounded in S56 of the Freedom of Information Act. The judge did make the point that it was open to Mr Wilby to make a new claim against either police chief (or both), grounded in breach of duty, negligence and discrimination, rather than a breach of the Act per se.

The present claims against both the Chief Constable and the Police Commissioner were listed as back-to-back final hearings on the following morning before the same judge. They were represented by junior barrister, Sophie Mitchell, of St Paul’s Chambers in Leeds.

As on the previous day, Ms Mitchell did not distinguish herself. At the applications hearing she had attempted to hand a 16 page skeleton argument over to both the judge, and Mr Wilby, six minutes before the hearing. It was not accepted by either.

At the substantive hearings, Ms Mitchell produced a thick volume of legal authorities, of approximately 200 un-numbered pages, as the hearing was about to start. Whilst that was not, in itself, fatal to the administration of justice, the very late service – and unsatisfactory composition – of the trial bundle was. It had not reached the judge having only been despatched from Weightmans late on the previous Friday afternoon.

Mr Wilby was able to retrieve two sizeable lever arch files from his neighbour’s house (to where they had been delivered by the postal service on Saturday afternoon) at 7.30pm the previous evening. It is unclear when Ms Mitchell received her copy of the trial bundle but she claimed, to the astonishment of most of those present in the courtroom, that she hadn’t read it. In particular, Mr Wilby’s witness evidence around which the whole trial centred. At that point, the judge allowed a short adjournment for Ms Mitchell to read up on the case.

When court resumed, Ms Mitchell attempted to cross examine Mr Wilby over materials upon which the defence relied, but were not exhibited in the trial bundle. It was clear that proceedings could not continue in this fashion. The judge, accordingly, stood both of the cases down and made Orders for case management and re-listing.

The performance of both Mr Collins, in terms of the preparation for the trial and Ms Mitchell in how she prepared and advocated for her clients, both fell some way short of the professional standards that courts and litigation opponents can rightly expect. On this subject the last word goes to well known York-based governance adviser, Gwen Swinburn, who attended the adjourned final hearings:

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The Chief Constable, Mrs Mulligan and Mr Collins have all been approached for specific comment on this article. None of the three even had the courtesy to acknowledge the email carrying the request.

Mr Holman was also approached and his views have been taken into account when detailing the interaction with him, concerning the complaint against Mr Collins. He has asked Mr Wilby not to contact him further.

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Page last updated Thursday 13th October, 2016 at 1435hrs

© Neil Wilby 2015-2016. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

 

Scandal hit Leeds law firm rocked by further misconduct revelations

Leeds is generally recognised as the second most important legal centre in the UK and is home to some famous old firms such as Addleshaws and Dibb Lupton. Those two law practices would be the amongst first calls for the powerful and wealthy who could afford the best, and most expensive lawyers, housed in plush city centre offices. Such clients would, accordingly, expect top class professional advice, court procedures followed to the letter and a successful outcome.

Those of us less well off might have to set sights lower and hope to chance upon a reliable, if less well known firm, such as Lester Morrill, that would be sufficiently competent to ensure that our legal interests were properly protected and a satisfactory outcome secured.

Someone down on their luck, however, might chance upon the dispute resolution team at Cohen Cramer and end up regretting that choice: Poorly judged representation, rules and regulations treated with disdain, money frittered away, an adverse result and a further stain not only on Cohen Cramer’s tarnished reputation but, potentially, damage to your own as well.

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Cohen Cramer came into existence in 2008 following a merger between two local law firms, Howard Cohen & Co and Cramer Richards. The former appear to have been best known as a bulk debt collecting firm operating from a PO Box in Cleckheaton, the latter a sports reputation management specialist.

At the time of the merger, joint managing partner Richard Cramer said: “We’ve joined forces to give more to our clients. The expertise we each have complements the other perfectly“. Mr Cramer is no longer associated with the firm that bears his name. The other principal figure in the merged operation, Howard Sidney Cohen, is no longer around either. His licence to practice expired in May 2014. Mr Cohen does, however, still describes himself as ‘Lawyer’ and Trustee to the troubled Shadwell care home, Donisthorpe Hall.(Full list of trustees and their roles here). The care home has just been rated as ‘inadequate’ by the CQC for the second time in six months and has been subject to criticism, some of it damning, for almost two years. This, in spite of repeated promises of appropriate remedial action by Mr Cohen and his fellow trustees. Full story here.

The former Cohen Cramer lawyer should not be confused with Howard Cohen, a practicing partner in Winston Solicitors LLP, another Leeds law firm.

Following the merger, the enlarged firm boasted nine partners, thirty lawyers and twenty support staff. The total Cohen Cramer staff complement at the time was over seventy, according to the entry they submitted to the UK Legal Directory (read here), and after they had moved to substantial premises close to the law courts in Leeds. Since May 2014, they have been housed in a converted tailoring factory further away from the city centre.

According to the Solicitors Regulation Authority (SRA) website there are now just eleven lawyers remaining (full list here). Two of whom have only very recently qualified. Another,  Mike Massen, joined Cohen Cramer in June 2014 when Gartons Solicitors was taken into the Cohen Cramer fold.

Four of the lawyers are listed at Companies House as Directors of Cohen Cramer Limited – Simon Baskind (also listed as Company Secretary), John Goodwin, Michael McDonnell and Emma Mason. The firm’s website page featuring these four is oddly vacant, apart from a stylish monochrome photograph (see here).

The exodus of key staff including, it seems, eighteen lawyers and five partners, might go some way to explaining the present state of their finances, as shown in the latest Cohen Cramer Ltd published accounts (read in full here). The money owed to the firm’s creditors is a staggering £3,654,839 (including longer term debt of £288,833) and there is a net current deficit of £951,605. Uncollected debts amount to £2,140,194.

Also, the concept that the Cohen Cramer name might still be worth over £2 million on the open market (presumably calculated as the sum of the respective sale and purchase valuations of Howard Cohen & Co, Cramer Richards and Gartons) might well confound some banking and accountancy experts. Especially now, in the notable absence of the two eponymous founding fathers and former managing partner, John Grant, who left Cohen Cramer in October 2012. Mr Grant had been with Howard Cohen & Co since 1987 and built up a specialist, and highly regarded, dental industry law practice. He is now a partner of rival firm, Goodman Grant, based in Leeds city centre.

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Two very experienced chartered accountants (one is also a certified fraud examiner, the other a local government auditor) have both scrutinised the published balance sheet of Cohen Cramer Ltd and highlighted similar anomalies:

  • Age and collectability of the £2,140,194 debts owed to the firm. Particularly, as Cohen Cramer put themselves up as experts in cashflow maintenance (see graphic above)
  • Amount owed to short term creditors, £3,366,006 is massive in relation to size of firm
  • No reflection of any asset associated with the longer term debt of £288,833
  • The net current deficit of £951,605 raises ‘going concern’ issues
  • ‘Stock’ valued at £257,420 for a service provider seems both unusual and grossly excessive
  • There is no note attached to the provisions for liabilities in the sum of £46,124 and no distinction made between provisions and any contingent liabilities
  • Lack of detail, or evidence, supporting intangible asset valuation of £2,008,073 (now amortised to £1,806,055) raises stewardship concerns over the production of these unaudited figures
  • Stewardship concerns were also raised regarding the absence of a profit and loss account. The Directors are, of course, entitled to rely on a Companies Act exemption for not publishing such figures.

One of the financial experts described the firm’s accounts as a “shambles”, the other said that publication of this article would be “devastating” to Cohen Cramer Ltd, unless they were able to show that their financial position has improved dramatically. Or, that the company was able to reverse the exodus of key fee-earners.

A partner in a well-known, award-winning, firm of solicitors in Leeds told me: “The city has suffered a string of law firm failures. Fox Hayes being the highest profile (read more here) – and I wouldn’t be surprised to see this one join them”.

Three of the solicitors who do remain with the firm are described on the Cohen Cramer website as “partners”: Karen Cawood, David Hall and the same Emma Mason who is also listed as a Director. With whom they are in partnership, and to what practical or financial purpose, is not made clear on the Cohen Cramer website.

Clarification was sought from each of the three “partners” on 28th March, 2016 regarding their roles. Six weeks later, a response is still awaited from all three.

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One of those “partners”, Mr Hall, works in the Cohen Cramer Disputes Team that is a principal focus of this article. He is certainly not listed as a partner on the Law Society database. As can be clearly seen in the image above he is an “associate”. A legitimate concern is that public sector clients may be charged a higher rate on the premise of seniority by a ghost “partner” in Cohen Cramer.

Apart from Mr Hall, there are only two other employees listed on the firm’s website as working in that department: The aforementioned Mr McDonnell and Gemma Bowkett, who started out with the firm in 2012 as a graduate assistant and was admitted as a solicitor in November, 2015.

Until a year ago there was another member of the Disputes Team who was, arguably, better known than all the other three, put together. The antics of the now notorious Emily Slater brought adverse publicity to not only Cohen Cramer, but to the wider legal profession.

  • She was the subject of a highly destructive article in the Daily Mirror following the unlawful arrest of a defendant in a civil claim.
  • The calibre of her legal work was criticised by judges, in open court, on at least four occasions. Mainly around failure to observe due process.
  • She is the principal subject of a relentless and devastating blog run by one of her legal ‘victims’, Stuart Brown.
  • She has also been heavily criticised by me in another article on this website: Liar, liar. Pants on fire
  • The high profile cases in which she was involved all appeared to end in failure for Cohen Cramer, their clients and herself.

So, how was Miss Slater, a junior, inexperienced practitioner of less than four years admission as a solicitor allowed to run amok, cause so much reputational damage and, effectively, end her own legal career prematurely? The first clue is in the track record of the senior solicitor directly supervising her, the aforementioned Michael McDonnell. The SRA found that Mr McDonnell practices law and runs his firm’s affairs in this manner:

  • Allowed the independence of himself and his firm to be compromised in a deal with a connected debt-chasing company
  • Acted in a manner likely to diminish confidence in the legal profession
  • Unlawfully conducted litigation
  • Failed to make arrangements for the effective management of the firm’s office
  • Failed to ensure an adequate system of supervision of clients’ matters conducted from the firm’s office
  • Entered into a financial arrangement which did not comply with the Solicitors’ Code of Conduct

That is a damning indictment of any law professional – or firm – and, given the scale and scope of the complaints against him and his firm over a long period, it is reasonable to infer that Mr McDonnell may have come close to being struck off.

Emily Slater left Cohen Cramer in January 2015 and, according to the SRA website, she has not practiced as a lawyer since. One report on the internet, that states Miss Slater was ‘fired‘, stands unchallenged by either her, or her former employers, over a year later.

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A further clue as to the professional demise of Miss Slater comes from a short examination of the conduct of one of the other two solicitors who is under Mr McDonnell’s supervision in his Disputes Team.

Ghost “partner” David Hall, in the six years he has worked with Mr McDonnell, has clearly absorbed the unscrupulous culture prevailing in Cohen Cramer’s Disputes Team. Mr Hall regards Civil Procedure Rules and Practice Direction as little more than a rough guide to litigation. His incompetence, exposed in open court, may yet become a legal ‘Hall-mark’, so to speak. Similarly, his wearisome belligerence and arrogance. These, significantly, were also the signature traits of the severely criticised Emily Slater.

Since this article was first published, a number of people have come forward with evidence of conduct by yet another Cohen Cramer employee that falls well below the required ethical and professional standards. This new material concerns Sarah McKell, who works in the firm’s POCA department . Curiously, her LinkedIn profile describes as a ‘senior lawyer’ having joined the firm in November 2014 (her fourth job in seven years) but her name doesn’t show up on the Law Society database either individually, or as part of Cohen Cramer’s complement of admitted solicitors. Clarification on this point – and others concerning supervision, oversight and, potentially, passing off – has been sought from both the troubled firm and from Miss McKell.

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The firm’s website says: ‘Sarah has been working in the legal profession for over 10 years, gaining experience in a wide range of areas of law’. Which, on what I have been able to uncover, appears to be a stretch of the truth.

On the written evidence I have seen, Miss McKell admits to a client, who recently fired her, that she had let them down professionally and personally. There is also no trace of letters setting out terms of engagement or client care in the file. Nor is there a letter ending the arrangment. Miss McKell withdrew her services via text message from her mobile phone.

Moreover, and more crucially, Miss McKell conceded that she had ‘badly advised’ that client, with near disastrous consequences.

On the same day that Sarah McKell’s shortcomings were identified in this article her Facebook profile was taken down. Having looked at her timeline previously, the reason could have been some of the more colourful language on display that was hardly becoming of a ‘senior lawyer’.

Miss McKell’s LinkedIn profile was also amended within 24 hours of naming her – and the reference to ‘senior lawyer’ removed from her profile.

Those two events could, of course, be unconnected to my own enquiries.

Nevertheless, several days of reckoning loom for Cohen Cramer and their ill-starred litigation lawyers as these were the warnings issued by the SRA, in its 2013 findings:

  • That Cohen Cramer and Mr McDonnell will ensure that they allocate sufficient resources to the supervision and management of the firm so as to satisfy the SRA that they are able to meet all their obligations under the SRA handbook.
  • The firm will as soon as reasonably practicable notify the SRA of any material change in the supervision arrangements.
  • Cohen Cramer and Mr McDonnell agree that they will not act in any way that is inconsistent with the SRA finding such as, for example, but without limitation, by denying the misconduct
  • If the supervision undertaking is not complied with, or if Cohen Cramer or Mr McDonnell acts in any way inconsistently with the SRA finding, the firm and Mr McDonnell accept that proceedings could be issued before the Solicitors Disciplinary Tribunal

Both Stuart Brown and I are confident that we can demonstrate beyond any doubt, simply by reference to court documents and the like, that the Cohen Cramer litigation leopard has not changed its spots and, as far as conducting legal disputes is concerned, matters have worsened, not improved, since the SRA investigation.

When first approached for comment, Simon Baskind, the Managing Director of Cohen Cramer Limited (and described as ‘Owner’ of Cohen Cramer on his LinkedIn profile), claims there are a number of ‘factual errors and misrepresentations within (my) articles’. Despite being pressed, he has refused to particularise his assertions. He also offers the view that my publications (this one and an article titled Hangin’ on a telephone wire) are ‘malicious’. But, again, offers no particulars in the face of an invitation to do so.

Mr Baskind has also refused to answer why he believes that a fit-for-purpose report that highlights the practical and regulatory failings, and precarious financial position, of a law firm receiving funding from the likes of the Independent Police Complaints Commission (IPCC) is not a public interest matter.

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More particularly, he has refused to provide any substantiation, or clarification, to the questions I have raised about his firm’s unaudited financial figures that are one of the two central points of public interest raised by this article. It has been made clear to Mr Baskind that if he provides the figures for the period ended 31st December, 2015 – and they are substantially different from the 2014 version – they will be reported upon accordingly.

Mr Baskind is similarly silent on the ‘ghost partners’ issue, but a footnote on their website says that ‘partners’ are so described to reflect their status within the firm. The questions concerning Miss McKell’s status and unethical conduct have also, so far, been ignored completely. As have those concerning supervision and his own self-evident stewardship and oversight failings. ‘Stonewall Simon’ is now on notice that if he continues to unreasonably block my questions, or my request for an interview, I will exercise my journalists’s discretion to doorstep him.

Comment has been sought from the IPCC as to the type of checks made by them over the financial  position of a law firm with whom they are believed to have spent around £150,000 – and also the track record, status and supervision arrangements of the three lawyers who have, so far, carried out the work on the IPCC’s behalf. Not to mention the antics of ‘senior lawyer’ Sarah McKell.

The press office at the Solicitors Regulation Authority have, helpfully, provided comprehensive responses on regulatory and financial questions put to them about intervention thresholds where conduct may breach a previous settlement, or there are concerns about the financial status.

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In contrast, but unsurprisingly, the IPCC have not had the courtesy to acknowledge the emails sent to them and to their Northern area press officer, Diane Bramall.

Final words in this piece go to Lupton Fawcett Managing Director, Richard Marshall, who told the Yorkshire Post at the time of his own firm’s merger with Denison Till: “Out of 11,000 law firms, roughly 3,000 are probably at serious risk of failure. Thirty of the top 200 firms are being actively monitored by the SRA (Solicitors Regulation Authority) as at risk of collapse. A number of firms are being starved of cash, partly through poor working capital management and partly because the banks are tending to have a polarised view of the legal services market.”

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Page last updated Tuesday 17th May, 2016 at 0835hrs

© Neil Wilby 2015-2016. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Photo credits: The Law Society, The Business Network, LinkedIn