Archive for August, 2013

Some Questions For Pro Bono

Theoretical approaches to charitable work by lawyers are ambivalent, to say the least. For example, in October 2006 the President of the International Bar Association, writing in The Lawyer, made the following points:
• Many countries do not have the benefit of the rule of law.
• The effects of this can be measured in a lack of certainty for investment.
• This commercial reality conspires to prevent the economic fillip which these countries so badly need.
• Internationally focused pro bono work can advance the rule of law.
• There is a need to emphasise more strongly the nexus between respect for the rule of law and the benign investment climate which it necessarily presents to the international community.
• Social and economic stability is a prerequisite for the attraction of investment.
• The legal profession can do much to help countries construct the framework of the rule of law and help to bring about an environment in which international investors can bring a much-needed injection of capital.
These statements can be seen as an overtly expressed link between pro bono, profit-making and successful capitalism.

Use of Latin
The dictionary definition of “pro bono”, an abbreviation of pro bono publico, is “free, used to denote the giving of free legal advice and services”. “Free” is a simple word of Old English origin, easily understood by anyone of normal intelligence, which can easily replace three Latin words.
Why do lawyers who provide their services without charge continue to use the term “pro bono”? References to Latin maxims and phrases in Law Reports are now so rare that they attract considerable attention. The use of Latin is discredited and is often criticised by the judiciary. ”Pro bono” continues to be used by those who assume that it’s a “good thing” without any rigorous theoretical analysis. But there are a number of question marks and a need for self-examination and criticism on the part of those who unquestioningly accept the benefits of legal charity and who fail to reject Latin terminology.
How do non-charging lawyers who label themselves “pro bono” react, for example, to the statement of Lord Justice May in Fryer v Pearson and Another (2000), that people should stop using maxims or doctrines dressed up in Latin which are not readily comprehensible to those for whose benefit they are supposed to exist?
Or, a judicial statement of 1940 which made the following points:
Counsel has strenuously contended that the master’s action was novus actus interveniens, which broke the nexus or chain of causation, and reduced the unseaworthiness from causa causans to causa sine qua non. I cannot help deprecating the use of Latin or so-called Latin phrases in this way. They only distract the mind from the true problem, which is to apply the principles of English law to the realities of the case.

There is a suspicion that the continued, unquestioning use of the phrase “pro bono” reflects the increasing Americanisation of the English legal system. For many American lawyers, pro bono work is an essential element of their career progression and a crucial factor in the corporate identity of large law firms.
A leading American lawyer is reported to have made the following comments:
We are fortunate to live in a country with a mature and effective legal system. People in many other countries are less fortunate. A lack of functioning and effective courts, corruption and shortages of competent lawyers are affronts to justice and to basic human rights. They also hold back a country’s development. They lead to people taking the law into their own hands. And refugees will stream from countries where legal systems offer no protection.
This can be seen as an argument that unless we give charitable legal help to the unfortunates of this world who are not blessed with the English legal system, we will face a flood of lawless refugees.

500 employment law cases (2)

Here are some more examples of material from our new publication.

Racial insult
Case Henry v Ashtead Plant Hire Co Ltd (2013) Eq Opp Rev 233:32, East London ET.
Facts H, a black man, was employed by A. A colleague referred to him as “nigger”. He reported this to HR, which took no action. H complained of race discrimination.
Decision The complaint was upheld. The tribunal agreed that the use of the word “nigga” was commonplace with younger people. The word once thought to be the ultimate insult has, to some extent, been reappropriated by black people. It does not sound good coming from a young, white person to an older black person. The context was all wrong. It was a crude, if old-fashioned, racial insult which had rather lost some of its sting in modern context with younger people, due to the rap culture.
£4500 was awarded for injury to feelings, based on the mid to high scale in the lower Vento band.

Grievances and tribunal claims
Case Woodhouse v WNW Homes Leeds Ltd UKEAT/0007/12
Facts A long-standing dispute between employer and employee resulted in nine grievances and nine tribunal applications. The issue was whether the employee could complain of victimisation.
EAT decision 1. In relation to victimisation, the ET had applied a comparative test. Section 27 of the Equality Act 2010 deliberately dropped such a test. The test now is whether the claimant was subjected to a detriment because he/she did a protected act.
2. The employer had objected to the way in which the claimant had brought the claims, believing that it had been completely unreasonable. It is a slippery slope towards neutering the concept of victimisation if the irrationality and multiplicity of grievances can lead, as a matter of routine, to the case being outside the scope of section 27. All the more so when the origin of the problem is established, as here, to have been real as opposed to imaginary race discrimination.

Migrant status
Case Taiwo v Olaigbe (2013) Morning Star, May 17, EAT
Facts T, a Nigerian, was employed by O as a domestic worker. T alleged that she had been systematically abused and exploited. She complained of race discrimination, comparing herself with a domestic worker of British national origin who would not have been treated in the same way. The employment tribunal dismissed her claim on the basis that she had been badly treated, not because she was Nigerian, but because she was a vulnerable migrant worker. This was not a protected characteristic under the Equality Act. T appealed to the EAT.
Decision 1. The appeal was dismissed.
2. T had made the error of assuming that because treatment is obnoxious it is also discriminatory.
3. T’s vulnerability was not an attribute peculiar to any racial group.

Up Against The Law

Up Against The Law
Up Against The Law (UPAL) described itself as the magazine for moderate extremists. The UPAL collective, which was active during the early nineteen-seventies, stated the following:
• We are a revolutionary socialist bunch with a lot of experience of the law from various sides of the dock -defendant, lawyer, and on the picket line. Our mag tries to tell it like it is – THE LIE OF LAW – how the system is bent something rotten, and the way the likes of us is being savaged by a ruling class full of crooks and gangsters.
• Our magazine is by and for criminals, defendants, radical lawyers and people like us who have been “up against the law”, who are pissed off with the farce of British “justice” and who are angry about getting pushed around by cops and lawyers playing legal games at our expense…. the courtroom is the gentle façade of the violence of the state: the laws are meant to justify the bosses and rulers having stolen the land, the resources and the product of our labour from us. In that situation, they cannot afford to have the people beating the state at its own game – so they make the law complicated; they surround it with mystery and misery; they say only a lawyer can know about the law – so everyone remains in ignorance about how to fight the illegality of the law. We aim to destroy that misery, to spread the knowledge so that people can fight it. The law holds us in chains – if we can’t begin to see the chains, how can we begin to free ourselves?
• The law defends the thieving of the rich against the thieving of the poor … this is what capitalism is about … calling one sort of crime honesty and another sort of honesty crime.
• Lawyers are in general ill-equipped, unprepared and incapable (for reasons of fear, ambition and incompetence) to challenge the tyranny of the bench. A judge can interrupt with impunity, humiliate defence lawyers, insult witnesses and intimidate defendants.
• All this can be achieved with little or no opposition from defence lawyers, who in the final analysis always have their careers to think of. They normally defend themselves as honourable gentlemen at the Bar, rather than defend the full interests of their clients … this means that any real expression of conflict between the prosecution and the defence in terms of emotionally charged heated exchanges are carefully prohibited by common agreement, and defendants are left on their own in the dock to stew in their own feelings of resentment … the courtroom is the ultimate arena of concealing the class struggle, such that even the drama of a riot case can be reduced to a tedious bore in front of a jury. Lawyers argue around remote legal technicalities and procedures and around points of law, and the real concerns of defendants are either hopelessly confused or ignored. Every trial is a conspiracy to silence the real life interests of people in the dock.
• Most lawyers are completely out of touch with the lives we lead. They come from the world of Savile Row suits and public schools, defending the working class of which they are unbelievably ignorant. They belong to the legal club, good for deals, bad for justice.

500 employment law cases

This major publishing project is nearing completion. It comprises 500 recent significant employment law cases, arranged in subject matter headings. The cases are set out, for example, as follows:


Confidential information

Duty of fidelity

2.001Case Brandeaux Advisers (UK) Ltd and others v Chadwick [2011] IRLR 224, QB

Facts C was employed by B Ltd. She developed workplace stress. She emailed large amounts of confidential material from the company to her private email address. When the company discovered this, she was dismissed for gross misconduct. The company brought proceedings for the delivery up of confidential information by C. It also claimed damages for breach of fiduciary duty.

Decision 1. C had breached her contract of employment by sending confidential material to her home address. She would be ordered to deliver up the material. The order had to be in a form which was appropriate to the electronic nature of the retention of the material.
2. C had not been justified in transferring documents to protect her own position in case a regulatory dispute arose.
3. B was entitled to dismiss C summarily. An employer can dismiss an employee for gross misconduct even if the employer is in breach of the contract.
4. B was not entitled to damages by way of repayment of C’s salary. B had had the benefit of C’s work for which it had agreed to pay.


Statement of particulars

Jurisdiction of employment tribunal

2,002 Case Southern Cross Healthcare Co Ltd v Perkins and others [2011] IRLR 247, CA

Statute reference Employment Rights Act 1996, ss.1, 11, 12

Facts P and others were employed by S. A dispute arose in relation to the contents of the written statement of particulars of their employment. The issue before the Court of Appeal was whether the employment tribunal had jurisdiction to interpret the terms and conditions contained or referred to in the written statement of particulars.

Decision 1. The tribunal did not have jurisdiction to interpret the statutory statement.
2. The tribunal could amend the statement to correspond with the contract of employment.
3. The only forum with jurisdiction in relation to the construction of the statutory written statement is the ordinary civil court.

The aim of the project, in general terms, is to provide lawyers and non-lawyers with access to summaries of the most recewnt case law devlopments in the field of employment law.

Money needed to practise as a barrister

Money needed to practise as a barrister (2012) (excluding costs of training courses)
Basic costs:
• Wig £525
• Gown £195
• Tunic shirts: £100
• Bands £10
• Dark Suit £250
• Minimum cost of dressing up: approximately £1000.
Optional extras:
• Wig tin with name in gold letters: £185
• Bridle leather collar box: £75
• Blue bag with initials: £72
• Striped trousers: £85
• Wig stand: £95
• Gavel and Block: £95 (The usefulness of this item is unclear: gavels are not used in English courts).
• Sleeved bar waistcoat: £275.
These figures do not seem to sit easily with the professed aim of the bar to broaden access to the profession and to recruit the more disadvantaged.
These costs are another example of law as commodity. The system generates work for tailors and wigmakers. If barristers and judges did not wear wigs, many wigmakers would become unemployed. Perhaps this is one justification for the retention of fancy court dress – to preserve jobs in the English wigmaking industry.

The rule against perpetuities

The rule against perpetuities
This is a sort of mental torture for law students and a means of generating income for practitioners. It is one of many areas of impenetrable law with no relevance for the propertyless.
Thomas W. Hopes, in his authoritative book on perpetuities, states that he has never acquired the faculty of brief and concise statement. He has certainly acquired the faculty of understatement.
Hopes states that the perpetuity rule can be split into 32 separate rules, for example:
1. Any provision restraining a tenant in tail from barring the entail or limitations thereto is void.
2. A life estate to an unborn person or to a person who may be unborn will not if it vests support a contingent remainder.
3. Any future executory interest legal or equitable or equitable contingent remainder whose vesting in interest is subject to a condition precedent which will not necessarily happen within a life or lives in being and twenty-one years is void.
4. The general rule is that no interest in property is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest, allowance being made for gestation only when it actually exists.
Immediate questions:
• What is a tenant in tail?
• What is an entail?
• What is a vest?
• What is an equitable contingent remainder?
This Victorian conveyancing language is so far removed from normal English that it might as well be Martian.
These rules are of no interest or significance to anyone who is not a property owner.
They exist as a sort of deliberately impenetrable code, designed to mystify property rights for the material benefit of lawyers.

Employment law

Employment law
In the context of general employment law the rules have become so detailed, complex and obscure that non-lawyers have little chance of understanding them.

Suffolk Mental Health Partnership NHS Trust v Hunt and Others (2009)
This case involved the level of detail which should be included in a written grievance relating to an equal pay claim.
Lord Justice Pill made the following comment:
• The encouragement of negotiation, conciliation and settlement might be frustrated if the grievance procedure led to satellite litigation on technical issues about whether a statement amounted to a grievance.
Lord Justice Wall added the following:
• Employment-related issues which were designed to be simple and understood by ordinary working people had become overlaid with degrees of sophisticated argument which at times render them unrecognisable.
• Employment tribunals were set up as fora in which ordinary working men and women could bring claims which they had been unable to resolve in the workplace with a view to swift and straightforward resolution. To this end, the rules relating to representation were very relaxed, case management powers are wide and costs were only to be awarded in extreme circumstances.
• His experience was that these essentially worthy aims were in grave danger of being frustrated by over-elaborate and sophisticated argument unintelligible to the layman.
• His layman’s plea was that there should be a return to the clear intentions underlying the establishment of the employment tribunal system; that lawyers should strive for clarity and simplicity and that unions and employers should strive to make the system work in the interests of ordinary working people.

Fixed-term employment contracts
Some employers have tried to get round the rule that employees have to work for a year before being able to complain of unfair dismissal by employing them on a series of fixed-term contracts, often for 364 days at a time.
It was recognised that something should be done about this attempted evasion of employment protection law. What eventually emerged was the familiar result – a scheme of such obscurity and complexity that no-one without access to a law library could possibly understand it. This has caused real hardship to those who try to assert their employment rights.
The lawmakers (and, no doubt the parliamentary draftspersons) tried to deal with the issue by the use of procedural requirements and fictions. These are so far removed from the realities of people’s day-to-day working lives that they achieve a kind of abstract, illusory fascination comparable to a hard-fought game of chess. One aspect of this is that a person whose fixed-term contract comes to an end is deemed to have been “dismissed”. This immediately imposes a legal fiction upon a crucial everyday reality. The employee has not been “dismissed” or sacked, as most workers would say. She will certainly not tell future prospective employers that she was dismissed, but rather that her fixed-term contract expired.
If employers are using fixed-term contracts to avoid legal protection for their employees, there are two simple ways of dealing with this which everyone could understand:
1. Make fixed-term contracts unlawful.
2. Give employees the right to complain of unfair dismissal as soon as they start work.

Employment Act 2002 (Dispute Resolution) Regulations 2004
Regulation 13: Extension of time limits
“(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and
(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or
(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired ….
(3) The circumstances referred to in paragraph (1) (b) are that the employee presents a complaint to a tribunal –
(a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or
(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit ….”

This is very difficult for experienced employment lawyers to understand, and needs access to statutory source material. For even the most determined, articulate and highly-educated non-lawyer, it is impenetrable. This sort of convoluted draftsmanship takes employment law even further away from the grasp of wronged employees and into the control of professional specialists.
The aim of these Regulations was to reduce the number of applications to the employment tribunal by encouraging the resolution of disputes before tribunal proceedings were started. It was, essentially, a cost-cutting exercise.
This was done in such a clumsy, obscure and legalistic way that the system was unworkable. It created more work for lawyers and moved employment law even further away from workers. The scheme has been described as disastrous and scandalous by many employment lawyers. It has now, thankfully, been scrapped but has left complex transitional provisions.
In one case, for example, an employee of a small charity lodged a grievance on a CD, comprising 500 pages of detailed complaints. This came within the definition of “grievance” for the purposes of the dispute resolution regulations (there was no definition) and the cumbersome and obscure machinery of the Regulations swung into place.

Political prisoners

Huey Newton distinguished two types of political prisoner. First, the great majority, he described as “illegitimate capitalists”. These are the unemployables, blacks, browns and poor whites who have no choice, no real method of partaking of the good things of life except by ripping off the system. They have no political consciousness, but their attack upon the property system, motivated as it is by institutionalised unemployment under capitalism, is in a sense political. Second, truly political prisoners: those who, like the Black Panthers, do not accept the legitimacy of the social order. They understand why they are in prison. They recognise that to be a legitimate capitalist is to exploit the oppressed and that to be an illegitimate capitalist will only perpetuate a social order where the privileges of some are based on the poverty and powerlessness of others.