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Archive for March, 2012

Money and the Law

Each wanton judge new penal statutes drawLaws grind the poor, and rich men rule the lawGoldsmith, The Traveller
A lawyer with his briefcase can steal more than a thousand men with guns 

  

Mario Puzo, The Godfather

Lord Bingham commented that equality before the law is an aspect of the rule of law. He stated his view that the laws of the land should apply equally to all and that it is the duty of the state to make the machinery of law work alike, for rich and poor.

My own forty years of legal practice have led me to the generalised conclusion that lawyers, as a group, have a vastly inflated sense of their own importance. They see themselves as wealthy, powerful and influential. They have expressly described themselves in the legal press as “fine fellows”. They are not aware that the existence of the legal profession depends on the continued existence of law – indeed, they would be shocked by any suggestion that they might be replaceable. For example, the most wealthy group of lawyers are generally those who deal with tax. They work behind the scenes, weaving webs and arranging the movement of money, dressed up in the highly technical vehicles of trusts and companies. If tax were to be abolished – which it could, because any statute can be repealed – then these lawyers would be out of a job. What needs to be realised is that it is politicians who exercise real power and that lawyers hang onto their coat tails, using their skills, contacts and knowledge of the rules to make fortunes for themselves. They are important only because they exist. If they did not exist, who would care?


Budget 2012

Polly Lord takes a light-hearted look to what yesterday’s Budget means…

Yesterday, I found myself in a rather unusual position…I found myself applauding the Conservatives.

Now, this is not usually a position I adopt. I certainly never agree with the ruling party, that’s for sure. But as a low earning, “thirsty” , 20-something with no children, no desire to buy or sell property, and no comprehension of retirement I would. I have to admit, it’s a budget aimed at me.

The problem I see is that I am rather odd. Aside from the obvious personality reference, my situation is peculiar. I am not unemployed, but a youth. I pay tax, but only a little. I have absolutely no financial, emotional or social ties to speak of (aside from a growing menagerie of animals), and yet I am relatively stable. A good pal of mine is the same age as me, we went to the same university, we live two streets apart from each other here in Bristol, we both have two degrees but the big difference is, he is still unemployed. When I say “still” I mean, actually not yet found a job since doing his Masters. Considering he graduated in 2011, that’s a worrying trend. Yet nothing in yesterday’s budget is going to help my pal get what he really wants…a job. If he had bypassed university he would probably have worked his way up some impressive well known company and be in charge of 100s of people…or at least something like stationary.

So my fellow non-grown ups are still suffering. The proper grown-ups, the ones with children and property and cars that bring with it responsibility are likely to be drastically worse off. They will be expected to continue to fight off the constant worry of being placed “at risk of redundancy”, ensuring that they never drive anywhere as their car is apparently fuelled on liquid gold, and also hoping that they or their family never get ill should the NHS reforms come in. On top of this, the HMRC will now be able to hunt them down for the tax that they are willing to pay, but are too confused to do so due to the constant pendulum of changes that occurs in the British tax system. At least by 2014 they will be able to see how other people are spending their hard earned money…

Oh well, at least they can look forward to retirement… Even though we’re not quite sure what the age will be, probably 90 or something by then; we also don’t know if the state pension will exist, or if the complicated layers of tax system will end up meaning that pensioners actually have to pay the government for staying alive.

So as long as you’re a fake grown up that’s playing to be a grown up with no possessions or relationships of any real value, it’s been a good budget. With that depressing thought, I’m off to the pub…


Wasted Costs In Employment Tribunals

WASTED COSTS IN EMPLOYMENT TRIBUNALS

Employment law advisers should be well aware of the risk of wasted costs orders in the employment tribunal, and should take note of the following recent case.

Case Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd [2012] ICR 305, EAT

Statute reference Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Sched. 1, r.48

Facts A claimant entered into a contingency fee agreement with solicitors for claims against his employer. The claimant was liable for disbursements, which included the fee for a barrister if the matter went to a hearing. Proceedings were started and the matter could not be settled. The claimant was unable to pay the solicitor, who did not tell the other side that the claim would be withdrawn until a few days before the hearing. The employer’s solicitor applied for a wasted costs order. At an oral hearing, the employment judge refused permission to the claimant’s solicitor to introduce various attendance notes and letters. An order was made for costs wasted from the date when it became clear that the matter would not settle. The claimant’s solicitor appealed to the EAT.

Decision 1. The appeal would be dismissed.

2. The decision of the employment judge not to allow the admission of documents so late in the day was within his discretion, given that an order for disclosure had been made three months previously.

3. The conduct found by the employment judge amounted to a breach of duty to the tribunal. It was plainly an abuse of process for a claim to be proceeded with which the claimant no longer wished to pursue.

4. On the findings made by the judge, who had preferred the claimant’s evidence concerning the advice and instructions, it was the solicitor’s fault that it had occurred.

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Horseracing:Health and Safety

Leading racehorse trainer prosecuted for health and safety failings

With Cheltenham Festival coming up this week, it seems appropriate to report on a recent health and safety prosecution following an incident at a top racehorse trainer’s yard.

Flat trainer Alan Swinbank is currently ranked 52nd in the trainer’s rankings, and is notable for his most prolific winner Collier Hill who earned £2.3 million in prize money. His stables up in North Yorkshire are a well-known, sizable and professional yard. However, not even this undoubted success makes Mr Swinabnk immune from both accidents and the Health and Safety Executive.

Paul Cussons, who worked for Mr Swinbank at his yard for 26 years, was asked by his employer to cut down overhanging trees above an old stable block. He had not been trained in how to use a chainsaw or how to work safely at height. He took the chainsaw onto the roof, but while he was sawing through the branches he slipped on leaves and fell through a skylight, landing on the concrete floor. He broke both shoulder blades, fractured a rib and punctured a lung.

Mr Swinbank was prosecuted by the Health and Safety Executive under section 2(1) of the Health and Safety at Work Act for failing to provide training, protective equipment and failing to identify risks. He was fined £10,000 and £6,048 in costs.

Horseracing is the second biggest sporting industry in the UK. It generates more than £3.7 billion, with £325m going directly to the Government through taxation revenue. It also employs 20,000 direct, and 70,000 indirect, full-time employees. It also, however, is notoriously dangerous. In terms of general approach to health and safety it is analogous to agriculture, which is seen as the most dangerous sector in Great Britain. To put into perspective, other sectors average at fatality rate of 0.7 per 100,000 workers, whereas in agriculture the rate is 9.6.

The problem in horse racing, but equally so agriculture, is that while the industries are inherently riskier, the general attitudes of those involved is to downplay health and safety. From my own experience this is due to a range of factors that are peculiar to these industries, e.g;

  • When dealing with livestock, your health and safety tends to be secondary to the animal’s welfare
  • Those involved in the sector tend to come through the family ranks, or certainly be used to certain risks. To an outsider, it looks dangerous, but if someone is used to “risks” they become desensitised.
  • The attitudes of those involved is “to get the job done” as a priority. If this means scrabbling over heath and hedge in precarious positions, so be it.

While I feel utter sympathy for Mr Cussons, particularly as even 16 months after the incident he was still badly affected by his injuries, the Health and Safety Executive must realise that in agriculture and equestrian worlds, people tend to live by their own set of rules. Generally, the employers involved are not cruelly avoiding protecting their employees, or evading the law to cut costs. No, generally, those employers are not used themselves to having to carry out risk assessments etc. They treat their staff as they were treated. The Health and Safety Executive must work with this sector in order to understand what practical in that sector. Then, and only then, will the rate of fatalities come down.


Operation Relentless

Operation Relentless – Avon and Somerset Police

While Chambers does not usually foray into criminal law, today we will make a small exception on this blog.

Operation Relentless is currently underway, and being operated by Avon and Somerset Police. The force has issued arrest warrants for burglars, street robbers and drug dealers through Bristol, South Gloucestershire, Bath and Somerset. This year-round scheme’s aim is to increase communities’ safety, not just by removing criminals from the community, but also by increasing the visibility of police officers.

What is particularly fascinating is that the force is keeping the public up to date on their progress via twitter on their webpage. Criticisms of the police, not just Avon and Somerset but nationally, are almost daily tabloid fodder. It is thus not just interesting to get a glimpse into a police operation, but more importantly it demonstrates a real awareness by Bristol’s police force that accountability and openness are vital to maintaining trust in our local police.

Perhaps it is fitting to leave the final words to Avon and Somerset police;

“Briefing at 5am today. 100 arrest warrants about to be executed. A bad day for criminals in?#Bristol”

For those interested in following the updates, the website is

http://www.avonandsomerset.police.uk/operations_and_initiatives/relentless/


Employment Tribunal Jurisdiction

EMPLOYMENT TRIBUNALS

Jurisdiction

Work overseas

Case Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1

Statute reference Employment Rights Act 1996, sections 94(1), 230(1).

Employment lawyers in Bristol, and throughout the United Kingdom, need to be aware of this landmark Supreme Court decision.

Facts R was employed as an accounts manager by H. He was dismissed for redundancy in 2006. He complained of unfair dismissal. At the time of his dismissal he was working in Libya. He continued to live in the United Kingdom and travelled to work for short periods overseas. An employment tribunal found that it had jurisdiction over the complaint. That decision was reversed by the EAT. R appealed to the Scottish Inner House of the Court of Session, which allowed his appeal. H appealed to the Supreme Court.

Decision 1. The question of fact was whether the connection between the circumstances of the employment in Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.

2. The vehicles which a multinational corporation uses to conduct its business across international boundaries depend upon a variety of factors which may deflect attention from the reality of the situation in which the employee finds himself.

3. It is notorious that the employees of one company within the group may waft to another without alteration to their essential function in pursuit of the common corporate purpose.

4. H’s business was based in Great Britain. It chose to treat R as a commuter, with a rotational working pattern. All the benefits for which he would have been eligible had he been working in Great Britain were preserved for him.

5. R had been given assurances that his employment relationship with H would be governed by British employment law. Matters relating to R’s dismissal were handled by H’s human resources department in Aberdeen. This all fitted into a pattern which pointed quite strongly to British employment law as the system with which his employment had the closest connection.

6. The fact that R’s home was in Great Britain fitted into a pattern which had a very real bearing on the parties’ employment relationship.

7. Considerable respect must be given to the decision of the employment tribunal as the primary fact finder.

8. The appeal would be dismissed. The matter was remitted to an employment tribunal to decide whether or not R had been dismissed unfairly.