This blog is primarily focused on the law and legal matters but also deals with politics and current affairs. It will also contain posts relating to my main site and my novel in progress, Divorcing Reality.
The main site is not fully operational as yet but does contain the red squirrel lawyer joke which has been found so offensive by certain other lawyers.
Thursday, December 31, 2009
So, this is news? Bobbies Like a Bacon Sarnie? In a Nice Comfie Station? Instead of Going out in Nasty Cold Weather catching CRIMINALS.
FURIOUS POLICE ARREST JACK STRAW
A nice cup of tea and a bun as well, please.
“Some police officers - whatever they may say - actually enjoy staying in the police station in the warm. We are dealing with human beings, but we are also dealing with the kind of discipline and culture in the police service.”
Mr Straw added: “It is very striking around this country that if you go to one police force it is up for it, getting crime down and really motoring, while the adjacent force - serving very similar communities - has not got it together.
“It is not about money, it is about leadership, organisation and culture.”
The police are of course "furious", just like MPs were when their expenses were exposed to scrutiny.
It seems that it is not only Chris Keil who wants to post inane comments to the Hetty Baynes blog:
As there is no e-mail address to send you a discreet communication - I'm having to post it here on your site:
What you have written is very distressing and unprofessional and an outright defamation of character towards someone who has done nothing to deserve your venom.
I'm kindly asking you to remove them and request that you refrain from passing judgment on people or cases you know nothing about.
If this is truly a blog about legal matters - where are all the OTHER legal matters you are supposed to be 'commenting' on???? Funny isn't it that it is just this case you mention... Seems to me that you are acting on someone's behalf - sour grapes to say the least!
You do not need to be reminded what the consequences of libel are... Do you?
For reasons set out in the previous post I have not been checking up on this blog much recently. This is posted by another "Anonymous" (I will find you dear). I suppose that is because he or she wants to remain "discreet" or, possibly, not expose themself to ridicule. Too late!
1. No-one else has difficulty emailing me. Oh, alright, try going to The Firm.
2. You are either a very bad lawyer or a very badly advised lay person and clearly have no understanding of the law of defamation.
3. If you think this is a blog about one case then that can only be because you accessed one page. Either (a) you are fixated on Hetty Baynes and/or (b) you are Hetty Baynes and/or (c) you are off your rocker and/or (d) you are a perfectly nice sane human being who just had one too many on 17th September this year.
3. Sue me. Go on, I dare you. Your brain is addled.
4. Ooo! You can only sue me if YOU ARE HETTY BAYNES! Well, at least that would explain 2 above.
At last a picture of the outlaw Chris Keil, who wants this "sad fuck" to die.
Chris Keil posted nasty stuff about me. Fair enough. He is entitled to his opinion. This site is about nothing if it is not about free speech.
He just went too far when he said he wanted me to "die"
Do his readers know the contempt in which he holds them?
Do his readers know the contempt in which he holds free speech?
Do his readers know the contempt in which he holds the little man (as opposed to himself, who is obviously a very big man whose opinions command and deserve to command universal respect)?
That is not tonight's quiz. Rhetorical questions do not count. Here are the quiz questions.
QUIZ:
(1) Should I report Chris Keil to the police for inciting someone to use violence against me?
(2) Should I report Chris Keil to the police for impliedly threatening to kill me himself?
(3) Should I sue Chris Keil in the civil courts for defamation?
Partial, biased, hard-hitting electioneering, even if it merits the description "gutter politics", does not sustain an allegation of malice to found a cause of action for injurious falsehood; so held by the leading libel judge Mr Justice Eady in his judgment in the case of Quinton v Pierce, released on the internet today.
Clearly, this judgment only applies to politicians and could be justified on the basis that if you want to participate in a dirty game do not expect normal rules of civilized behaviour to apply and certainly do not expect your opponents to treat you with any civility. Lie down with dogs, get up with fleas.
To put that in latin (which we lawyers are no longer supposed to do): the defence could have been volenti non fit injuria or, going back to English, if you go into politics you are consenting to being traduced, vilified, blackguarded, having your character trailed through the gutter, your expenses questioned, your every word, act, omission etc. subjected to the utmost scrutiny, generally being booed and hissed at as if you were a pantomime villain (even, in those rare cases, where you are not) etc. etc. and you will have no right to complain because you knew what you were getting into you pathetic little moron.
Well, that is the ratio decidendi of the decision as far as I am concerned.
An amusing story from Gary Slapper of The Times concerns the abandonment of criminal trials at Bristol Crown Court because the smell of garlic was spreading around the court building. Visit the title link.
This is a particularly stupid defence to run. The best it will get you is an adjournment.
If you are exposed as the garlic deployer's friend you will cast doubt on your credibility and may destroy any other available defence you have. But then, lots of criminals are stupid. That is why they are criminals.
On the other hand, some criminals are clever and never get caught. This just supports two cardinal principles that prosecutors and governments need to keep at the forefront of their minds. They are:
(1) Probability of detection rather than harsh sentencing is the primary deterrent.
(2) Confiscation of the proceeds of crime should be the primary punishment.
Therefore, focus on better policing (more intelligent, better qualified, properly funded) and increase the penalties for failing to satisfy a confiscation order; perhaps, discounting the retributive part of the sentence and applying a percentage uplift to the criminal gain.
The really interesting thing you will find in Gary Slapper's article is the exclusion of a barrister from court for wearing perfume. OK, it was the 60's.
The notorious lay represenative of fathers in the English courts has been at it again. And this time it is not about contact with the father's children. It's about filthy lucre.
Well, I suppose Dr P is entitled to earn a crust.
The answer to the title question is: No, not a lot really. In fact, if you consider cases that he has been involved in (including his own sorry dispute with his ex-wife) he damages fathers and their relations with their children.
It is not simply that he gets up the noses of judges. He does that, however. He does it with such skill and alacrity that I sometimes think that he wants to lose.
If you are really tempted by having Dr Pelling represent you then you should first of all read the judgment in his latest debacle. You will quickly change your mind.
It is G v A and it becomes compelling reading at about paragraph 100.
For instance, would you really want your advocate to send in a written comment on the judgment as follows:
"In fairness to [the father] I would ask the reason why the cheque was stopped be stated. It was stopped on Dr Pelling's advice who drew [the father's] attention to the stated purpose of the £20000, for the mother's cost of moving, … , and pointed out that no move of the mother was on the horizon and that of course the problems of the settlement deed etc had not been resolved so the move was not going to take place in the near future. It was not reasonable to pay under those circumstances, especially as the Order made no provision for what would happen to the money if the move was not taking place, and on the mother's record there was real concern it would just be spent improperly and dissipated. It is not fair to [the father] as a businessman of probity to damn him in a judgment as a person who stops cheques when he owes money, which prima facie does not enhance reputation. [The father] cannot publicly reply to such aspersions because of the anonymisation (which does not guarantee that [he] will not become known to some people as the A in question)."
Mr Justice Munby saw that one coming:
I am content to record Dr Pelling's comments but they hardly seem to assist the father. The facts as I set them out in paragraph [6] are not disputed; nor could they be. The fact is that the father stopped the cheque in December 2006, at a time when his appeal against the District Judge's order stood dismissed, when the stay had long since been lifted and long before he made his application to the court on 15 June 2007. The fact is that when he stopped the cheque he owed the money. The fact, as now appears, that the father acted on the advice of Dr Pelling can hardly assist him; it merely throws an interesting light on Dr Pelling's approach to orders of the court.
As a lawyer, I naturally advise you to pay attention to orders of the court. If you want to take the advice of Dr Pelling then feel free to do so. If the advice, in the end, does not work out entirely costs neutral (financially or emotionally) then I am sure that Dr Pelling's insurance will cover you. Please check with him first, however.
Mr Justice Blake thinks that the documents Barclays does not want you to see are still sufficiently difficult to find that they have not yet lost all confidentiality. Well, I'm a slow typist and it took less than 60 seconds. Mind you, when you start trying to read them you wish you had not found them. They use an especially effective cryptogram. They are written in mind numbingly boring jargon so that only the most dedicated investigative reporters will stay awake long enough to penetrate to the heart of any wrongdoing the documents may reveal. I have not the patience. Of course, Barclays say that there is no wrongdoing to be found. Well, that explains why they woke the first judge at 2:30 am in the morning to try to suppress publication then.
I am conscious of the need for a sub-editor to work on a title such as the above but read this...
Trent Strategic Health Authority* has been held guilty by the House of Lords of ruining Mr and Mrs Jain's nursing home business and causing them "serious economic harm" on the basis of a "without notice application that ought never to have been made".
[*Note: Trent's liability arises as successor to the Nottingham Health Authority, as is made clear in the judgments. But "they inherit any liability incurred by their predecessors". ]
Yet, Mr and Mrs Jain have no redress under English domestic law and will receive no compensation.
All of the law lords expressed great sympathy for the Jains and reached this second conclusion "with regret" for their "undeserved fate".
Many will be be of the view that where a government established body causes financial ruin to those subject to its authority AND is found to have behaved wholly improperly BUT its victims have no remedy THEN it follows that:
(a) something has gone badly wrong with the law; and
(b) a serious injustice has been allowed by the law to happen.
This is simply a logical proposition based on underlying assumptions concerning morality and justice. The assumptions are shared by most who live in democratic societies (of whatever religion or none). Such people may struggle to understand this decision but only if they are not also lawyers. We lot are used to the discordance between the law on one hand and justice on the other. It's one of the things that get us a bad name.
You should read the judgments by following the title link if you want to see how this discordance occurs.
Let us look at what Trent did (this is paragraphs 6-9 of the judgment of Lord Scott of Foscote):
"6. Mr and Mrs Jain's only recourse was to appeal to a Registered Homes Tribunal. This they did. But there was no procedure available for an expedited appeal and no procedure enabling a stay of the magistrate's order pending an appeal to be obtained. We were told that the procedures under which appeals to a Registered Homes Tribunal can be made lead to a minimum delay of six weeks before an appeal can be heard. In the event, Mr and Mrs Jain's appeal was not heard until February 1999, over four months after the order had been made, and, not surprisingly, by the time the appeal was heard irrevocable damage had already been done to their nursing home business, with an adverse knock-on effect on other assets that they owned.
7. The appeal, heard by the Tribunal on 8 and 9 February 1999, was a resounding success. But the success came too late to afford them more than the satisfaction of vindication. The Tribunal, having heard evidence from the Authority in purported justification for the action they had taken, did not call for any evidence from the Jains in response and were scathing in their criticism of the Authority. In the Tribunal's nineteen page Reasons For Decision one reads of the inclusion of irrelevant and prejudicial information in the statutory statement that had been placed by the Authority before the magistrate, of insinuations by the Authority of abuse of residents notwithstanding the absence of evidence sufficient to justify any charges of abuse, and of untrue suggestions by the Authority of failure by the Jains to comply with various statutory regulations. Some of the complaints made in the statutory statement about the running of the nursing home did, in the view of the Tribunal, have some substance but, commented the Tribunal, "none warranted the immediate closure of the home". They said that "there was no reason for supposing that the residents could not properly have been protected by proper monitoring by the inspectors and the provision of advice where necessary". The statutory statement had complained that building works of improvement being carried out at Ash Lea Court had produced an unsatisfactory physical environment for the residents, but the Tribunal noted that there was no evidence that the dust from the building works "posed any risk to the life or health of the residents" and concluded that the conditions at Ash Lea Court had not justified an application for an order under section 30 :
"… the respondents have wholly failed to persuade us that an application for an order cancelling registration under section 30 was an appropriate way of meeting [the Authority's concerns about the running of the nursing home]"
8. The Tribunal was particularly scathing about the Authority's decision to make their application ex parte and without notice to the Jains. While accepting that there had been "no bad faith" on the part of the officials who, on behalf of the Authority, had been responsible for making the application, the Tribunal said that they could see
"… no justification whatever for the failure to warn [the Jains] that the application was to be made"
So the Tribunal allowed the appeal, set aside the magistrate's order of 1 October 1998 and expressed, as a coda, their regret that they had no power to order the Authority to pay Mr and Mrs Jain's costs: cold comfort, no doubt, for the Jains.
9. The upshot of this sad story is that Mr and Mrs Jain's nursing home business had been ruined and serious economic harm had been inflicted on them by an ex parte without notice application that ought never to have been made".
Well, there you go Mr and Mrs Jaine. Trent are wholly discredited, have abused their powers, you have been ruined and all you get is "vindication". Oh, you can try your luck in Europe if you like. You will need to finance it if you can or get funding from the LSC.
You might also sympathise with the Jaines in respect of the finding of no bad faith. Read all of the judgments. I do.
I wonder how this case would have been decided in the USA. Perhaps, someone will enlighten me.
Similar fact cases could be litigated in any country that is party to the Montreal Convention 1999. There was no dispute as to the facts of the case and everything turned on the construction of Article 17.1 of the Convention:
[British Airways] is liable for damage sustained in case of death or bodily injury of [Beverley Anne Barclay] upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
So there was only one question: Did the agreed facts constitute an "accident"?
The Agreed Facts
I summarise the key agreed facts as follows:
1. The aircraft was in normal working condition and all applicable aviation regulations had been complied with.
2. As she lowered herself into her seat, with her body weight towards the right, Ms Barclay's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left.
3. Ms Barclay suffered injury in consequence of 2 above.
4. Ms Barclay had no remedy in contract or negligence but only under the Convention and only if she had suffered an accident.
This is only a brief summary and you should refer to the report for fuller details.
No Win No Fee?
You may by now have formed the opinion that this was a "brave" claim. But it went to the Court of Appeal and I, at least, would not have taken it on a no win no fee basis. Of course, Ms Barclay may be that rare litigant who is rich enough to fund speculative litigation regardless of advice because she is determined to have her day in court as a matter of principle.
Well, someone got it badly wrong.
This is Part 1 of a 2 part post. Look tomorrow for Part 2: The Decision.
If you are contemplating (as a UK resident) entering into a foreign surrogacy arrangement, you should read the case in the title link.
Everyone in this case is a good guy. Yet, difficulties arose. As Mr Justice Headley said in opening his judgment:
Although the outcome of this case was in the end happy for all those involved, it provides a cautionary tale for any who contemplate parenthood by entering into a foreign surrogacy agreement.
Very difficult issues arose and the following indicates them sufficiently for this post:
It will be readily apparent that many pitfalls confront the couple who consider commissioning a foreign surrogacy. First, the quality of the information currently available is variable and may, in what it omits, actually be misleading. Secondly, potentially difficult conflict of law issues arise which may (as in this case) have wholly unintended and unforeseen consequences as for example in payments made. Thirdly, serious immigration problems may arise having regard to the effect of Sections 27-29 of the 1990 Act, at least as understood by me. Children born to foreign surrogate mothers, especially to married women, may have no rights of entry nor may the law confer complementary rights on the commissioning couple. Fourthly, Section 30 is available only to a married couple, others may encounter even more significant difficulties in securing parental status to children born to a surrogate mother, and that is of importance since the Human Fertilisation and Embryology Act 2008 will by Section 54 open up parental orders to unmarried and same sex couples. Lastly, even if all other pitfalls are avoided, rights may depend both upon the unswerving commitment of the surrogate mother (and her husband if she has one) to supporting the surrogacy through to completion by Section 30 order and upon their honesty in not taking advantage of their absolute veto.
So, everyone is agreed that it is in the best interests of the child/children but the parents have to go to the High Court for approval. Read this case before you decide whether you are wealthy enough.
Well, thank goodness for that! I felt dirty all of the time these obnoxious people could say that they were a member of the same profession as me. I have only just received the good news and refer you to The Times report for further information. Here is Jim Beresford:
This is another case where a local authority gets it straight through the heart from the Court of Appeal but there may be little publicity because, although Court of Appeal decisions are delivered in open court, the press show little interest and do not attend.
This does not stop the press running stories complaining about our "secret" family justice system!
Before we get to this particular bad boy/girl social services department it is worth noting Lord Justice Wall's comment that "there are of course, as is always the case, no press in court, even though this court sits in public." In other words, if the press do not attend and do not report the cases they can, their complaints about secrecy ring a little hollow. This is, of course, my inference so it is my fault alone if I have misinterpreted Lord Justice Wall.
Well, what have "Walsall Metropolitan Borough Council Social Services Department" (as they are referred to in the judgment, but not on their own website) done wrong?
For the specifics I am going to leave you to consult the title link. It is the strength of the comments made by the Court of Appeal that are of more general interest:
"The lamentable, totally lamentable, state of affairs in this case is that the local authority have utterly neglected their duty in a way which is worthy of the highest condemnation and that is what I give it."
"On 5 March this year the court ordered the local authority to file a statement by the Young Adults and Disability Team by 14 March. For the second time this local authority cocked a snook at the order of the court. For the third time the court ordered on 25 March that that statement be served by 4 April. For the third time the local authority simply ignored it. In the result the matter was sent to the county court and, as I have already recited, HHJ Mitchell accepted the undertaking from the team manager of the local authority to file their pathway plan etc by 4pm on 4 July and heigh ho, what a surprise, for the fourth time the local authority metaphorically raised two fingers in the air to the court and ignored everything the court has ordered. This is a disgraceful state of affairs. If time had permitted it, I would have directed the director of the Walsall Metropolitan Borough Council Social Services Department personally to attend this court and proffer his explanation and his apology. Instead, I will direct that he writes to this court and to the Wolverhampton Court, giving both his explanation for his disgraceful failure of duty and to proffer his sincere apologies. He is fortunate not to be facing a summons for contempt."
"To make matters abundantly plain, and to demonstrate to the local authority that this is an order which we expect to be obeyed, this order will be endorsed with a penal notice and the director is to be given the assurance by those who represent him today that his contemptuous disregard of this order could lead to an application to commit him and, without prejudging that matter, my preliminary view is that it stands a good prospect of success and he should be advised accordingly."
"It invariably happens in these cases that we never have before us the people who are actually responsible for what has gone on. Some wretched social worker who has just been handed the papers over a few days before is usually put forward as a sacrificial lamb, as a victim to this court's anger and legitimate wrath, and that is what has happened in this case."
Mark Haddock (an alleged murderer but only in prison for GBH* with intent) has won the right to hide his face, at least for the time being.
No-one can publish his picture; that is, a picture of his new face. Obviously, we can still publish his old face: Well, let us hope that this attempt to hide from his former friends in a terrorist organisation works better than the last one:
This is not a man deserving of the sympathy of the court or of its protection. However, the protection is limited - see the title link.
If you want to know who Mark Haddock is you might start with his wiki entry.
Haddock was an insider in the UVF* and latterly a Special Branch Informer. It has been said:
Really Complicated Investment Vehicles ("RCIVs") are the cause of the current "credit crunch" or "international banking crisis".
It is simple:
1. The sacked heads of UK banks were not themselves capable of creating or understanding RCIVs.
2. In fact, no-one was.
3. There were no RCIVs capable of real world risk assessment (a "RWRA") by someone outside the elite group of their creators ("the inner cabal").
4. The inner cabal consists of people in banking who can devise RCIVs that are inexplicable.
5. The inner cabal know that they cannot conduct an RWRA on a RCIV. But they also know that no-one else can either.
6. However, with a little finesse the inner cabal have been able, by complex but essentially meaningless explanations, to persuade their bosses and customers that their particular RCIV was a sure fire money maker ("an SFMM").
7. The inner cabal knew that there was no RCIV that RWRA would show to be a SFMM.
8. However, they also knew that their bosses and customers did not know this.
9. So, they could sell them both a pup and earn huge bonuses whilst the bubble expanded and did not pop.
10. The bubble popped.
QED. Now that you understand that, you also understand how the inner cabal did it.
They simply flummoxed everyone with the use of acronyms and persuading bosses and customers alike that they were too stupid to understand what they were doing and so should simply trust them with their money.
A more serious approach to this question can be found at the title link.
"It was revolting. It was disgusting and an insensitive and racist attempt to satirize a scene of exploitation," said Risa Hontiveros, a Philippine lawmaker, demanding an apology from the BBC.
She said that "by making a horrible scene of exploitation an object of ridicule, the show trivializes an act of abuse commonly experienced by [Filipino] workers abroad."
"... [a] petition has been set up by a group called the Philippine Foundation, which is calling for the re-education of the BBC."
Oh, go on, pull the other one,
The Re-education of the BBC!
This is the suppression of free speech red in tooth and claw.
Isn't "re-education" a Chinese communist concept meaning, in essence: do as we say, think what we tell you and become our slave OR WE WILL TORTURE YOU TO DEATH?
I apologise immediately for the capital letters: an Internet solecism, I know. But just this once we need them.
And what we do not need is a shameful, spineless, cowardly and, unfortunately, typical response from our political leaders:
"...the British Embassy in Manila distanced itself from the broadcaster by saying the organisation has editorial independence and the views expressed and portrayed by the network “are completely independent” from the Government.
It said Filipinos in Britain “are an important part of British society, making invaluable contributions to our scientific and service sectors, and enriching UK culture”.
Oh, well that's all right then!
ONE QUESTION ONLY:
Is free speech of any importance to any supposedly democratic government anywhere in the world?
"This beggars belief when you see the paltry sums offered to our servicemen blown to bits by "innocent Iraqis".
The law firm involved found greater rewards looking for Iraqi claimants rather than taking up the labour party & MOD injustices to our own troops.
No wonder half of them want to quit."
These comments seem a bit unfair and I pose the following questions:
1) How much compensation would these claimant's have got without the assistance of Leigh Day & Co?
2) Why should these claimants have been prevented from pursuing lawful claims because others (i.e. soldiers) may not have lawful claims because of their contractual relationship with the MOD?
3) Are there any racist connotations to these and similar comments?
Whether you need a libel lawyer or not, you will find the title link amusing. This is worth a visit. I cannot say any more because one of them might sue me!
This case has been to the House of Lords already and changed the law in the sense that they decided that the shorter 3 year limitation period for bringing claims for personal injury applied to intentional assaults rather than the longer 6 year period generally applicable for other torts.
That was a victory for the rape victim. Why? Because the 3 year period can be extended in exceptional circumstances but the 6 year period cannot.
Whether the period should be extended was referred back to the High Court and its decision was released on the internet today. See the title link.
Mr Justice Coulson has given the Claimant the extension and allowed her action to proceed against her rapist. Instinctively, we probably all feel that he has made the right decision. Why should the undeserving £7 million pound lottery winning rapist not compensate his victim?
Legally, I am less sure. Mr Justice Coulson has done his very best to render his decision appeal proof. I am not sure that it, in fact, is.
Here are his reasons for exercising his discretion in the Claimant's favour:
"... When considering all the circumstances of this case, I have identified a number of factors in the defendant's favour. These include, in particular, the length of the delay, the possible difficulties for the defendant on some aspects of the evidence on causation caused by that delay, and the payment of the £5,000 by the CICB. However, I have concluded that the factors in the claimant's favour are more numerous and of significantly greater weight. They lead me unhesitatingly to conclude that equity requires that the discretion under section 33 be exercised in her favour.
Those factors include in particular:
(a) The nature and seriousness of the underlying tortious wrong; (b) The fact that one of the consequences of that wrong was the defendant's impecuniosity (because he was unable to earn money by which he could otherwise have met a judgment for damages); (c) The fact that, prior to his lottery win, the defendant's impecuniosity meant that he was simply not worth pursuing in an action for damages. This was the principal reason for the claimant's delay and one that I consider to be reasonable on the particular facts of this case; (d) The fact that the claimant acted promptly following the defendant's release from prison and his lottery win: (e)The fact that the 'clinically significant' second bout of PTSD in 2004 will be capable of being fully addressed by both parties at any trial."
Do these factors fully and necessarily trump the purpose of our limitation legislation; which is to enable potential defendants to know when the risk of a claim against them has expired and they can rest easy?
Well, Mr Hoare certainly has the resources to explore this question on further appeal.
No-one, I think, is going to wish him luck. It emerged after the verdict that this little bastard had "six previous convictions for rape, attempted rape and indecent assault." A less attractive client would be difficult to envisage.
I would not touch him with a barge pole and it can hardly be defamation to describe him, quite simply, as a piece of low life scum. Hopefully, he will spend any part of his fortune that does not go in damages to the Claimant on legal fees!
And, what about his other six proved victims? They should be consulting lawyers now.
Here he is at the time:
And here he is now:
A small picture of a small man. You will need the picture as he lives under aliases.
QUIZ QUESTION: What were they thinking of when they let this man out?
They entered a market they said they did not understand. Indeed, they did have an understanding. It was, however, their own understanding and not one based on misrepresentation by Lloyds. See the title link.
Their understanding was:
If I become a Lloyds name I shall get richer than I am aleady, quicker than I have so far and at no risk to me!
That is, they believed in fools' gold.
Not many will sympathise with their plight. The decade of litigation they have engaged in has secured them nothing. It has simply been a matter of postponing the evil day.
I thought the whole concept of being a Lloyds name was based on "honour" (ie. you pay up when you lose). It was not. It was simple greed and, if you got caught, you simply wriggled and squealed like a stuck pig.
The Times has created a fantastic archive of cases that changed the law, with summaries by Gary Slapper and links to the origanal Times law reports. Here are the links:
This a wonderful resource that I would love to have had when I was a law student but everyone interested in the law, or even just in human beings or life, will find fascinating tales here.
I will put a link to this post in the sidebar shortly so that it is easy to find.
Anyway, here is a sample of what you will find:
"In 1895, The Times reported on three trials of Oscar Wilde. It was the celebrity scandal of the century. The Marquis of Queensbury, who thought his son was being corrupted by Wilde, sent a card to Wilde’s club saying: “To Oscar Wilde posing Somdomite” [sic]. Wilde sued for criminal libel. Queensbury pleaded justification, accusing Wilde of soliciting more than 12 boys. The case had many marvellous episodes, particularly when Wilde was cross-examined:
COUNSEL: Have you ever adored a young man madly? WILDE: I have never given adoration to anybody except myself.
Wilde lost after a fatal slip in cross-examination in which he seemed to say he hadn’t kissed a boy not because he was a boy but because he was ugly. Soon after, he was arrested for indecency. Wilde was eventually convicted after a second trial — the first jury failed to agree on most of the charges — and sentenced to two years with hard labour. The case included many shocking travesties of justice. For example, it came to light that throughout the proceedings, the young men who were testifying against Wilde were each being paid £5 a week by the police, an enormous sum at the time.
Nevertheless, Wilde’s courtroom wit was bountiful. Asked by the seasoned 44-year old prosecutor Charles Gill whether he exalted youth, Wilde said he did and added, to courtroom laughter: “I should enjoy, for instance, the society of a beardless, briefless barrister quite as much as that of the most accomplished QC.”
He was asked later whether his habit of giving cigarette cases to working class youths was not strangely expensive. Wilde replied that it was “less extravagant than giving jewelled garters to ladies”."
Mr Ramage and Mrs Strachey were in dispute about a very small piece of land. Both required access over the disputed land to other parts of their own land. The obvious solution was to share this valueless patch of earth; but no, this was a dispute between neighbours and when neighbours fall out common sense flies out of the window.
As Lord Justice Sedley said (wryly understating the truth):
"In the present case a poorly drawn conveyance left in doubt the ownership of a patch of ground a fraction of an acre in size. Neither party, so far as one can tell, needed to own it in order to enjoy the use of the rest of their land, though both found its use convenient. Whichever of them held title to it, an easement of use or access should have satisfied the other's needs. But instead of reaching a compromise along these lines, war was declared. Unlike Old Caspar after Blenheim, we can now tell who won; but whether the expenditure on law and lawyers, vastly exceeding the value of the piece of land, has been worthwhile one has to doubt."
I dislike neighbour disputes because everything always gets out of hand.
I tell clients a story about an old case I was involved in. It was a dispute over a parking a parking space on a private road. It did not end up in a judgment but only because my client's opponent, in the course of one of their regular out of court altercations, dropped down dead of a heart attack. I declined instructions to continue the proceedings against the widow.
Never get involved in a neighbour dispute. It is really an area of law where the only winners will be the lawyers. That advice and my little story have never discouraged anyone.
As Lord Hoffman said in an earlier case:
"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army."
The reference is to an exchange between Hamlet and a captain in Fortinbras's army (Hamlet Act IV, scene iv):
FORTINBRAS
"HAMLET Goes it against the main of Poland, sir, Or for some frontier?
Captain Truly to speak, and with no addition, We go to gain a little patch of ground That hath in it no profit but the name. To pay five ducats, five, I would not farm it; Nor will it yield to Norway or the Pole A ranker rate, should it be sold in fee.
HAMLET Why, then the Polack never will defend it.
Captain Yes, it is already garrison'd.
HAMLET Two thousand souls and twenty thousand ducats Will not debate the question of this straw: This is the imposthume of much wealth and peace, That inward breaks, and shows no cause without Why the man dies. I humbly thank you, sir.
Captain God be wi' you, sir."
This leads into Hamlet's final soliloquy which I do not hesitate to quote in full:
"How all occasions do inform against me, And spur my dull revenge! What is a man, If his chief good and market of his time Be but to sleep and feed? a beast, no more. Sure, he that made us with such large discourse, Looking before and after, gave us not That capability and god-like reason To fust in us unused. Now, whether it be Bestial oblivion, or some craven scruple Of thinking too precisely on the event, A thought which, quarter'd, hath but one part wisdom And ever three parts coward, I do not know Why yet I live to say 'This thing's to do;' Sith I have cause and will and strength and means To do't. Examples gross as earth exhort me: Witness this army of such mass and charge Led by a delicate and tender prince, Whose spirit with divine ambition puff'd Makes mouths at the invisible event, Exposing what is mortal and unsure To all that fortune, death and danger dare, Even for an egg-shell. Rightly to be great Is not to stir without great argument, But greatly to find quarrel in a straw When honour's at the stake. How stand I then, That have a father kill'd, a mother stain'd, Excitements of my reason and my blood, And let all sleep? while, to my shame, I see The imminent death of twenty thousand men, That, for a fantasy and trick of fame, Go to their graves like beds, fight for a plot Whereon the numbers cannot try the cause, Which is not tomb enough and continent To hide the slain? O, from this time forth, My thoughts be bloody, or be nothing worth!"
Reflect and consider that if you wish to find quarrel in a straw then you may pay a heavy price and that that is so even if you win.
Rampton Hospital is a high security psychiatric hospital in the UK. It is an alternative for prison where a criminal is insane.
Residents or former residents applied in this case to be exempted from no-smoking regulations.
For instance, "normal" prisoners are exempt and can smoke in their cells.
Certain persons suffering an acute psychiatric state can be exempted at mental health hospitals. The rules for this are, however, so bizarre that they probably make the exemption pretty worthless to the beneficiaries. We will come to those in a minute.
The result of the case was failure. No-one at Rampton gets exempted. And the court has effectively decided that is ok. This is not what interested me in this case so go to the main title link if it interests you.
What interested me was the regulations that do apply if you get an exemption or, more specifically, the mind of the person that drafted them. Here they are:
"5.9 The patient may only smoke outdoors. The location to be chosen should be discrete as the sight and smell of a patient smoking may upset other patients.
5.10 The Nurse will retain the cigarette until the patient has been safely escorted outdoors, when the cigarette will be given to the patient and then lit by the Nurse who will retain the ignition source.
5.11 When the patient has finished smoking the Nurse will ensure that the cigarette is extinguished in a suitable ashtray and disposed of safely in an appropriate bin.
5.12 The staff and patient will return to the ward.
5.13 Once the decision has been made for the patient to stop smoking then the remaining cigarettes will be returned to the [patients'] Shop for destruction."
QUIZ QUESTION: What kind of mind devises such a regulation or would want to devote a single minute of their working life to drafting it?
My answer is that it is the kind of person who themself requires psychiatric help and may well be criminally insane. Mind you, they probably have a double first and flew through the civil service entrance proceedure.
A businessman was trying to choose a lawyer, but was being very careful about it. He scheduled appointments to interview three lawyers.
At the first lawyer's office, after an initial exchange of pleasantries, the businessman said, "Okay, let's get down to business. I have an important question for you, and I want you to think carefully before answering. How much is two plus two?"
The lawyer raised his eyebrows. "two plus two is four." The businessman thanked him for his time, and proceeded to his next appointment.
The second lawyer, who was also a CPA, seemed a bit more particular than the first lawyer. After an initial discussion, the businessman again announced that he had a very important question, and asked, "How much is two plus two?"
The second lawyer went over to a computer, and entered figures into a spreadsheet. "According to my calculations, two plus two is approximately four." The businessman thanked him for his time, and proceeded to his next appointment.
The third lawyer sat behind a big mahogany desk, and smoked a cigar. He seemed rather self-important as compared to the other two, but at the same time appeared to be much more successful. The businessman again announced, "I would like you to answer a very important question for me, before I decide whether I should use your services. How much is two plus two?"
The lawyer pulled the shades, locked the door to his office, and asked in a hushed voice, "How much do you want it to be?"
The Doctor and The Lawyer
A doctor had just bought a villa on the French Riviera, when met an old lawyer friend whom he hadn't seen in years, and they started talking. The lawyer, as it turned out, owned a nearby villa. They discussed how they came to retire to the Riviera.
"Remember that lousy office complex I bought?" asked the lawyer, "Well, it caught fire, and I retired here with the fire insurance proceeds. What are you doing here?"
The doctor replied, "Remember that real estate I had in Mississippi? Well, the river overflowed, and here I am with the flood insurance proceeds. It's amazing that we both ended up here in pretty much the same way."
"It sure is," the lawyer replied, looking puzzled, "but I'm confused about one thing - how do you start a flood?"
And One Final Short Joke
The trouble with the legal profession is that 98% of its members give the rest a bad name.
Note
I love lawyer jokes but some other lawyers do get chippy about them. Tough. Live with it! Chaucer and Shakespeare probably did not start the tradition of having a go at lawyers but they certainly carried it on and no lawyer today is going to stop it.
I will put a link to the above site in my sidebar shortly.
You might also try The Red Squirrel Lawyer Joke on my current homepage but be warned that I am rewriting my homepage and this link may become invalid when I update it and I may forget to update this link.
The randomness of death demonstrates irrefutably the meaninglessness of life and the non-existence of god.
That is two conclusions drawn from one assertion of fact so I suppose you will want a little convincing.
GOD THE GAMES MASTER
That death is random is not demonstrated by the current loss of life in Burma. A rational god might well have decided that the lives lost were justified by the provocation they would provide for international intervention and the reform of a corrupt government. He would not be a very pleasant god to believe in. He would be using the earth as a kind of game site where he could inflict decisions about climate change and just see how the Sims reacted. Oh gosh! We play games like that.
Let us look at it two ways.
IF DEATH IS NOT RANDOM
If death is not random then someone decides who dies and when. Think about it! It is a very unattractive proposition. It does not fit at all with a belief in a good god. It only fits with a belief in God the Games master (see above). Wholly innocent people die. Babies die. Very good people die early.
IF DEATH IS RANDOM
A good god could have devised a world where death is random. Could he? If so, he could have devised a world where death was not random but merit related. He did not.
The following FAQ's may assist:
IS RANDOM DEATH ESSENTIAL TO FREE WILL?
The answer is: not really. The only reason for killing people in your game is to score points. You simply need to set up a different scoring system. One that begins: Not Sending Massive Flood – BONUS – 10 Trillion Points.
IS GOD GOING TO STRIKE ME DOWN FOR POSTING THIS?
No, he probably does not exist.
If (contrary to all probabilities) he does exist then I really do not know. Maybe he likes to play with Sims like me in the game.
SHOULD YOU LIKE GOD?
None of the versions I have seen out there seem particularly attractive. If you can find a likable version of god, please let me know.
This is the extraordinary case of RP v Nottingham City Council. It is a child care case and, as previous posts make clear, I do not believe that these are always handled correctly. That is not the focus here.
John Hemming MP has engaged in a totally misjudged and ill-considered attack on the professional integrity of solicitors, barristers, social workers and experts. Lord Justice Thorpe has administered a thoroughly justified rebuke. In my view the Court of Appeal judgment calls into question Mr Hemming's fitness to be an MP. The conclusion of Lord Justice Thorpe was:
"As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence."
Hemming's allegations included:
the Official Solicitor lied and fabricated a letter
the solicitor instructed by the OS fabricated attendance notes
the expert was in the pay of the local authority and therefore did not give a true opinion
The second of Lord Justice Thorpe's reasons for setting out in some considerable detail the facts of this matter was:
"to record Mr. Hemming's quite extraordinary reaction to SC's file. After Mr. Peter Jackson QC had taken us through the references to SC's discussions with RP about the role of the Official Solicitor (perhaps not, in fairness to Mr. Jackson, in quite the same degree of detail as I have done) we invited Mr. Hemming to reply on RP's behalf. I confess that, no doubt with considerable naivety, I had expected a recognition on his part that, whatever RP's perspective of the Official Solicitor and his role, the record made by SC would be respected, and that Mr. Hemming would acknowledge that, to some extent at least, RP's recollection had plainly failed her.
Not a bit of it. So astonished was I by Mr. Hemming's response that I asked the transcribers to make me a CD Rom of the exchanges which occurred, so that my note of them could be supplemented by the record. In a nutshell, Mr. Hemming's response was that the evidence contained in SC's file had been made up: in a word, fabricated."
Whilst the full judgment should be read I feel I must post the following lengthy segment:
"Over the period during which this judgment has been reserved, I have, of course, carefully considered Mr Hemming's interventions in this part of the case, and I have re-read the files. Having done so, the feeling of incredulity which I experienced on 4 March has not diminished.
In my judgment, SC's files demonstrate overwhelmingly four clear facts. They are; (1) that RP was fully aware that SC had doubts about her ability to provide instructions; (2) that RP was fully aware that the Official Solicitor was being approached to act on her behalf; (3) that she was fully aware that the Official Solicitor had been appointed, and was representing her; and (4) that she was fully aware of his role in the proceedings. In short, RP's assertion that she did not know the Official Solicitor was acting for her is manifestly unsustainable.
Mr. Hemming's response on RP's behalf is that this cannot be so because the file has been interfered with. I have, of course, considered that response with care. It is a profoundly serious allegation. However, it is one for which, in my judgment, there is absolutely no evidence. The only query is the mistaken date on the typed attendance note.
I find it not only unacceptable but shocking, that a man in Mr Hemming's position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.
I can simply see no reason why the file should not be taken at face value as accurately reflecting what occurred. The file simply reflects and records the actions of a solicitor doing her best to represent a disadvantaged client. I can see absolutely no reason why SC should have made false entries on the file and no reason why she should not have forwarded the Official Solicitor's letter of 11 December and the explanatory leaflet to her client. I ask myself the very simple question: why should she behave in this manifestly unprofessional way? In the crude phrase: what was in it for her? The answer to the second question is, of course, nothing."
Mr John Hemming MP has done nothing but damage the cause he espouses.
His behaviour in this case was utterly deplorable.
In an earlier age, not long ago, well, only decades ago, an MP in his position would have done the honourable thing and resigned.
Mr Justice Owen has dealt another blow against the government and in favour of freedom. Gosh! High Court Judges who support freedom seem to be self-propagating at an alarming level. I am sure the government will intervene soon.
The UK government said it could renege on its promise to hold a referendum on a treaty with impunity. It further said that no one could challenge its right to say one thing and mean another. This is the famous Humpy Dumpty Defence:
`I don't know what you mean by "glory,"' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.
`When _I_ use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you CAN make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master - - that's all.'
This is the UK government's absolutely favourite defence.
Why would anyone complain?
On 13 April 2005 the Prime Minister launched the Labour Party manifesto in which the earlier promises of a referendum, as reflected in the EU Bill, were repeated. Following the general election on 5 May, the promise to hold a referendum was repeated. On 13 May 2005 the Prime Minister was reported in The Sun newspaper as saying "we don't know what is going to happen in France, but we will have a referendum on the constitution in any event – and that is a Government promise." On 18 May the Prime Minister confirmed in the House of Commons that there would be a referendum in relation to the Constitutional Treaty, and on 24 May 2005 the Government re-introduced the EU Bill which still contained provision for a referendum, in the House of Commons.
What were the government's excuses (sorry, their defence)?
"They are first that the issue raised by the claim is not justiciable, secondly that the claim is a violation of parliamentary privilege, and thirdly that there was no unambiguous and unqualified representation that a referendum on the Lisbon Treaty would be held."
THEY LOST ON ALL THREE POINTS. That is, 3-0 to freedom on round 1. Round 2 follows and I will update.
East Sussex County Council is within my geographic area. Until the government rendered it uneconomic to maintain a legal aid franchise I used to handle child care cases involving them. I rarely came across a lawyer who did not regard their social services department as badly managed and arrogant. The Court of Appeal has now confirmed this opinion and condemned them. See the title link.
In argument, a number of adjectives were used to describe the conduct of the local authority / adoption agency [East Sussex County Council's SS] (henceforth "the agency") in this case. Over the period during which this judgment has been reserved, I have re-read the papers and reflected on the agency's conduct. In the event, I have come to the conclusion that the only word I can use to describe it is "disgraceful". That is not a word I use lightly.
"During the course of argument, we gave counsel for the agency every opportunity to defend and justify its conduct. In my judgment, she not only failed to do so: worse, she did not appear to think the exercise necessary. On her argument, the agency was acting within the letter of the 2002 Act, and in the best interests of the child. Although she acknowledged that aspects of the agency's conduct were likely to be criticised, her attitude came across, to me at least, as – in effect – so what? If the 2002 Act permitted the agency to do what it did, why was the manner in which it did it relevant?
In my judgment, the conduct of the agency in this case demonstrates a profound if not total misunderstanding of its functions under the 2002 Act. Moreover – and this I find particularly dispiriting - it provides useful ammunition for those who criticise the Family Justice System for administering "secret" justice, and who attack social workers as a group for their arrogance and the manner in which they abuse their functions by both removing children from their parents unlawfully, and by stifling legitimate parental responses."
This was an adoption case. East Sussex Social Services forced through the adoption before the father of the child's application to set it aside could be heard. They were fully aware of the application because the father's solicitors had written to them.
"There was no reply of any kind to that letter. Counsel for the agency was either unable or unwilling to offer any explanation for the total failure to reply, but in my judgment, given the agency's subsequent behaviour, only two inferences, both adverse to the agency, can properly be drawn from that failure. They are; (1) that the agency did not wish to give the father or his solicitors any information; and (2) it wished, as the judge found, to "scupper" or "stymie" any application which the father made to the court. These two inferences are, in my judgment, irresistible. Indeed, there is no alternative explanation. Certainly counsel for the agency did not proffer any alternative."
And further:
"Both the agency and the recipient of the letter of 17 January must understand that the failure to answer the letter was not merely discourteous and thoroughly bad practice, but that it can only be seen as a deliberate attempt to keep the father in the dark, so that the agency could proceed to place the child and thus prevent the father from making an application to the court under section 24(2) of the 2002 Act. It is this conduct in particular on the part of the agency which leads me to categorise its conduct overall as disgraceful."
I need not go on but you should read this case if only to discover the full extent of the "abuse of power" and "sharp practice" in which East Sussex County Council's social services are prepared to indulge where the welfare of children is involved.
See my previous post Terror Or Freedom? commenting on The Times' prediction that Mr Justice Collins was about to deliver another body blow to the UK government's draconian anti-terror laws. They were right: see the title link.
Let me make it clear. I have no quarrel with very strict anti-terror laws. There are only two provisos. The laws must be (a) proper laws approved by Parliament and (b) in accordance with fundamental human rights.
Mr Justice Collins, I think, agrees. I do not suggest that he agrees with any other of my comments.
It is simply wrong that by executive action the government can freeze assets on the basis of undisclosed information and provide no effective avenue of appeal. This is such a fundamental breach of the rule of law that such actions are insupportable in a society that professes itself to be democratic and free.
The imposition in this way of such laws is characteristic of a dictatorship not a democracy. If the court's were to countenance laws of this kind they would be acquiescing, at the very least, in government by an oligarchy.
Thus any appeal must fail. If it does not then democracy has been abolished in this country.
"If we arranged for Monsanto to create a unique, sterile, food crop (wheat, for example) with a unique genotype, we could pay Afghan farmers the going rate for opium to grow this instead. Money and food is passed to the Afghan economy and the drug barons are hit where it hurts money - their wallets."
The above seems to me to be a good idea.
Apparently, the Afghan poppy producers are paid at subsistence levels for their multi-million dollar crop. See the title link.
Mr Bow seems to have a nice simple solution.
We pay them to do something else; preferably something useful. But even if not, it will still be cheaper and more effective than trying to enforce the unenforceable in a lawless country.
Ok, I feel that I have had an unfair share of persistent litigants in person over the past few years and may, in consequence, be more amused (in a rather long suffering and grudging way) than you will be:
The title link goes to the site where I got this which aims "to become the largest collection of lawyer jokes and cartoons". It is not there yet.
The Times reports today that the High Court is about to deliver a new blow on terror to the government. See the title link.
I hope they are right. According to the article in The Times:
The government has used subordinate legislation to deny terrorist suspects the right to get legal advice, make them apply to the executive for £10 a week expenses (pardon? are we trying to starve them to death?), restricted their right of appeal to an appeal to the body that made the original decision and denied them access to any information that would enable them to establish grounds for an appeal.
Has it really gone this far?
It also seems that these truly draconian rules have been brought into force without being debated in parliament.
I almost refuse to believe that any Uk government would descend into this Stasi nightmare. I assume that The Times is not making it up, however.
Mr Justice Peter Smith, most famous for inserting his own coded message into his judgment in the Da Vinci Code case, is reported today to have been reprimanded for his refusal to step down as judge in another case for apparent bias.
He may feel he has got off lightly. He potentially faced being stripped of his office as a High Court judge.
The other case was Howell & others v Lees & others. The Claimant/Appellant were represented by Addleshaw Goddard. The judge had been in negotiations with that firm to go and work for them but had eventually been turned down. He had been a bit upset by this and thus they argued that he might be biased against their client in the Howell case.
You may well wish to read the whole of the email correspondence but here is a small extract:
"I feel you have wasted my time for several months. I am extremely disappointed because contrary to your fine words you have allowed the bean counters to prevail. I am not very impressed with you or your firm at the moment and I do not think the tone of your emails enhances the position."
More extraordinary were his exchanges with Mr Crampin in the court below. The extracts cited in the Court of Appeal judgment are quite lengthy and I recommend reading the full CA judgment. It will be an entertaining read even if you are not a lawyer.
Here is a short one:
"MR CRAMPIN: Having had an unsuccessful discussion or negotiation with Addleshaws, your lordship expressed yourself in strong – intemperate, almost -- anguish.
MR JUSTICE PETER SMITH: Nonsense. I don't know what part of the country you come from, Mr Crampin, but it's about time you grew up. If you think that's intemperate, then you are on another planet from me. If you thought it was intemperate, then you should have seen the correspondence which didn't trouble Mr Twigden.
MR CRAMPIN: I'm endeavouring to make a submission, not to engage with your Lordship in badinage of that kind. The question that a fair-minded person –
MR JUSTICE PETER SMITH: I'm challenging you, Mr Crampin, on your analysis, when you suggest that my correspondence was intemperate. I don't accept that."
Oh, it gets better; or, worse, depending upon your point of view.
The heroic Oxford coroner Andrew Walker (a thorn in the side of the Ministry of Defence) has been moved sideways.
It is not accurate to say that he has been sacked (as is widely reported on the internet). He was on a fixed term contract and his contract is not being renewed.
The reason given for this is that the "resources" (i.e. the three additional coroners appointed to deal with a backlog of military inquests in Oxford) are no longer required. See this article. The Department of Constitutional Affairs said:
"The government believes that these extra resources can complete all 85 inquests by May 2007."
I love the Dalek-like reference to human beings as resources!
However, Andrew Walker is indisputably an able, efficient and incorruptible coroner. Even if you want to get rid of him it is going to look bad if you simply dispense with the services of such a useful "resource". But, he is a bloody nuisance. See this article.
SOLUTION: Move him to be coroner for Hornsey in North London.
RESULT: The Ministry of Defence can rest easy. Des Browne can smile again. Not many dead soldiers in Hornsey.
If anyone says the government did not recognise Mr Walker's sterling qualities (thorough, precise, fair etc.) they can respond that his job as coroner was redundant (we terminated the other two temporary coroners as well), they have given him an important job in Hornsey and their critics are being unreasonably cynical. Oh, you are not really suggesting that the Department of Constitutional Affairs would make a decision to move a coroner simply because it was in the interests of the Ministry of Defence, are you?
Well, I might be. I know you do not do not do much in the way of joined up thinking but maybe you are capable of just a little when the self-interest of ministers is involved.
I can only imagine the response but it might consist of the exclamation "Oh, really!" and the stamping of a foot. Well, I was not suggesting that they had climbed out of their prams. Ok, I have not suggested it yet.
I should quote one tribute by one parent of a dead soldier:
"We wish to pay tribute to the coroner Andrew Walker, for his unrelenting quest for the truth, his objectivity in considering all the evidence and his humanity in the way he dealt with us, the family.
He is, indeed, a fine and wise coroner."
Well, you can see why the government does not like him! Previous posts:
The Daily Mail reports today that Lord Justice Ward (pictured above) has labelled two neighbours continuing a dispute about a smallish amount of land in the Court of Appeal "potty".
This is a boundary dispute. Not all neighbour disputes are boundary disputes but all boundary disputes (alright, most of them) are neighbour disputes.
"Potty" is an apt description for most parties to neighbour disputes. They are as acrimonious as divorces with, usually, not much in issue in terms of the value of the land but huge amounts tied up in legal costs.
Lord Justice Ward gave Mr Robert Beton permission to appeal i.e. he gets the right to a hearing before a full three judge Court of Appeal. This is not a sensible use of court time.
Lord Justice Ward is fully aware of this. He had some trenchant comments to make:
“This is another of that hideous form of litigation called the boundary dispute, a form of litigation which is best not pursued.
"Just how much is this stupid piece of land worth? What you are arguing over is a few rhododendron bushes.
"If you live in St Georges Hill, you've got money to throw away, presumably. But why throw it away like this? You're all potty.
"Disputes of this kind are a most hateful form of litigation; go away and sort it out."
It is rare for permission to appeal applications to be reported. I hope this one is; if only for those words. They form a sensible basis for advising any client wishing to litigate a neighbour dispute.
My first choice is to advise my client's to forget it unless there is some serious land value involved and a strong case.
My second choice is to try to get the parties to agree a joint instruction to a land surveyor and enter into an agreement to be bound by his or her determination.
Hey presto. No huge legal fees and a surveyor who is likely to cost under a £1,000.
And it is going to be surveying evidence that is likely to be conclusive in most cases anyway.
Litigation to resolve these disputes is therefore correctly described by Lord Justice Ward as "potty".
Legal costs may not be the only reason to avoid litigation. In a divorce, sometimes you may be living in the same house but not always. A divorce is one of the most stressful processes you will encounter in your life. In a neighbour dispute you will, by definition, always be living next door to each other. Others may take sides.
So why is the Court of Appeal giving them time in this case against Lord Justice Ward's better opinion? The answer is because he has to. Mr Beton employed a QC who has found an arguable point:
"The judge found that adverse possession must have been manifest to the owner.
“But he failed to give weight to the fact that the presence of the bushes was such to make much of the fence not observable.”
Of such points are Court of Appeal decisions worthy and, even so, to get this far, someone had to be so oblivious to costs that he was willing to fund leading counsel to review the papers. The question remains, in the words of Lord Justice Ward:
"Just how much is this stupid piece of land worth?"
I will just add this. One neighbour dispute I was involved in lasted years. Both parties were well off and retired. It ended one day when one of the parties dropped down dead of a heart attack. Needless to say, they were having one of their verbal arguments outside their houses as to who could park where in their private road. My client wanted me to continue proceedings against the widow. I declined the instructions.
I promised in a previous post (Who Will Rid Me Of This Turbulent Priest?) to provide an update on the brave Oxford Coroner and his right to criticise the government, when the judgment became available. It now is, at the title link.
The following extracts give the flavour of the reasoning of Mr Justice Collins:
"Ms Moore [for the Secretary for Defence] submitted that it was impossible to afford to soldiers who were on active service outside their bases the benefits of the Human Rights Act. If the Act was to apply, it had to apply in all aspects. The circumstances of any particular case will determine whether an Article is breached. I am concerned with Article 2. This reads, so far as material:-
"1. Everyone's right to life shall be protected by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection." ..."
He then referred to the difficulty of imposing human rights obligations in battle conditions and went on:
"But the soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2. If I may take a historical illustration, the failures of the commissariat and the failures to provide any adequate medical attention in the Crimean War would whereas the Charge of the Light Brigade would not be regarded as a possible breach of Article 2. So the protection of Article 2 is capable of extending to a member of the armed forces wherever he or she may be; whether it does will depend on the circumstances of the particular case. ..."
"It was common ground that the circumstances of Private Smith's death gave rise to concerns that there may have been a failure by the army to provide an adequate system to protect his life. Thus the Middleton approach to the inquest, namely that in deciding how the deceased met his death, the coroner should consider in what circumstances death resulted, should prevail. On the last day of the inquest, the coroner asked for argument whether the evidence justified a finding that there was even arguably a breach of Article 2. He decided that no such finding was justified. It seems he thought that a conclusion on this was needed since it would dictate the contents and form of the verdict he would announce.
In my view, he was wrong to entertain the argument. The procedural obligation under Article 2 was to hold the necessary inquiry and to find the necessary facts. If those facts showed that there was no breach of the substantive obligation and that nothing different need be done in the future to protect life, that should be indicated by the verdict. The family needed to know what were the conclusions on the important issues. Thus the inquest is not the means whereby a substantive breach of Article 2 is to be established – indeed, as will become apparent, a verdict which appeared to determine this would be likely to be contrary to Rule 42(b) of the Coroners Rules 1984. It is to decide by what means and in what circumstances the deceased met his death. ..."
He then referred to the European Court of Human Rights key decisions and in particular quoted from Jordan in the House of Lords:
"The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."
He concluded that a coroner must be entitled to conduct an effective investigation in compliance with the above.
The conclusion of Andrew Walker which the Ministry of Defence attacked was that:
"On the 13th August 2003 Jason George Smith was on active service when found suffering with heatstroke at the Al Amarah stadium where he was stationed. He was taken to a medical centre at Abu Naji Camp where he died. Jason George Smith's death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate."
He went on to summarise the MOD attack and to further conclude:
"While there was a somewhat faint argument that the word 'failure' was undesirable, the real attack by Ms Moore was directed at the adjective 'serious'. It is obvious that there is some tension between the prohibition contained in Rule 42(b) and the need for an Article 2 inquest to identify those responsible and shortcomings so that they can be remedied for the future to avoid similar deaths. Section 8(3)(d) of the 1988 Act, which requires a jury if the continuance or possible recurrence of the circumstances in which the death occurred is prejudicial to the health or safety of members of the public, creates its own tension since there must be examination of and findings in relation to any shortcomings which led to the death and which may need to be addressed."
In a final (itself robust) attack Mr Justice Collins stated clearly that a coroner is entitled to be robust (trenchant, perhaps, or even, severe) when making his findings:
"Ms Moore submits that a verdict which speaks of a failure is in danger of transgressing Rule 42(b) and the addition of the adjective serious crosses the line. It is, she says, not neutral but pejorative. But the coroner was recording the evidence of witnesses and concluding that that evidence was accepted. Ms Moore accepts that he would have been entitled to record that acts or omissions existed which were directly relevant to the cause of death. To identify them would have had much the same effect as describing them as failures. The prohibition is against framing a verdict in such a way as to appear to determine any question of civil liability. The word determine is important; a finding that there was a failure to act in a particular way does not appear to determine a question of civil liability. It no doubt will assist a potential claimant, but it is the evidence which is elicited which will in the end be material, not the verdict of the coroner or the jury. No doubt, assertions that there has been a breach of a duty of care or that there was negligence should be avoided, but I do not think that findings of fact, however robustly stated, can be forbidden."
Thus the MOD and its silly minister Des Browne were swatted down and effectively held up to ridicule for their breaches of human rights and their pathetic attempt to defend them.
I now hear that the coroner will not be reappointed. More tomorrow.
FURIOUS POLICE ARREST JACK STRAW
