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Archive for September, 2013

Vulnerable Witnesses

Witnesses

Vulnerability

Case    Duffy v George [2013] EWCA Civ 908

Facts    D was accused of sexual harassment by Ms G, a colleague. She brought a claim against D personally.  Ms G requested an order that she would not be required to attend the hearing because she was frightened of D. D objected on the basis that he wished to question her. The ET refused her request. The hearing proceeded in the absence of Ms G. Two complaints of sexual harassment were upheld. On appeal to the EAT, D’s appeal was rejected on the basis that tribunals were able to proceed and to admit evidence even though the claimant was not available for cross-examination. The test was one of fairness. D appealed to the Court of Appeal.

Decision          1. The ET should have held a pre-trial review to consider the options available in the light of Ms G’s decision not to attend the hearing.  These included holding separate hearings, allowing each side to submit questions in advance or allowing witnesses to give evidence from behind a screen.

2. The case would be remitted for hearing by a different tribunal.


Gross Misconduct

 

Gross misconduct

Reasonable response

Case         Brito-Babapulle v Ealing Hospital NHS Trust (2013) Morning Star, September 27, EAT

Facts        B was a consultant haematologist employed by E. Her contract allowed her to treat private patients. From March until June 2009 she was on sick leave. She received full pay from E but continued to treat private patients. E stated that she had been told not to treat private patients while she was on sick leave. B stated that she could not remember this. E did not believe her and summarily dismissed her for gross misconduct on the basis that her conduct amounted to fraud. The ET dismissed her complaint of unfair dismissal. It stated that E did believe that she was guilty of misconduct, had reasonable grounds for that belief and had carried out a full and thorough investigation. It did not accept B’s evidence. Once gross misconduct was found, dismissal must always fall within the range of reasonable responses. B appealed on the ground that the ET had failed to take into account mitigating factors, for example her previously unblemished record, the fact that her career would be blighted by her dismissal and that it would inevitably result in her deportation.

Decision  1. There was no logical jump from gross misconduct to the proposition that dismissal must inevitably fall within the range of reasonable responses, because this did not allow for mitigating factors which might mean that the dismissal was not reasonable.

2. Tribunals must assess whether an employer’s behaviour was reasonable or unreasonable having regard to the reason for the dismissal. It was the whole of the circumstances which it must consider with regard to equity and the substantial merits of the case. This general assessment necessarily includes a consideration of those matters which might mitigate.

3. The case would be remitted to the same tribunal to consider whether it was reasonable in all the circumstances to dismiss B.     


Pupillages Part 1

PUPILLAGE

Stepping back in time almost half a century, the pupillage system for would-be barristers was almost entirely unregulated. The Bar Standards Board was not even a twinkle in the eye of the regulators. Professional conduct at that time was ruled by a slim volume – Boulton’s Conduct and Etiquette at the Bar. In relation to pupillage, Boulton stated simply that a barrister may not receive a pupil into his Chambers or accept a pupil fee until he has notified the pupil’s Benchers of his intention to do so and has received no objection from them. That was it.

In passing, Boulton also commented that it is contrary to professional etiquette for a barrister to do, or cause or allow to be done, anything for the purpose of touting, firstly or indirectly, or which it is calculated to suggest that it is done for that purpose. The most obvious example of this class of professional misconduct occurs where the barrister seeks out the company of, or unduly associates with, solicitors and their clerks.     

The system, if it can be described as such, largely involved personal contacts. I knew a number of practising barristers from my school and university days, one of whom had been my fagmaster ( If this needs explanation, fagging was a particularly vicious aspect of life in a minor public school, involving small boys acting as servants for large boys).

When I approached him, he dismissed my informal application because he said that my hair was too long.

Following a number of other disastrously unsuccessful approaches, it was suggested that I should contact a set of chambers which were largely unknown to the profession. This set comprised a wide range of individuals and was headed by a man who had been excluded by a mainstream set because of alcoholism. He told me that they would take Mickey Mouse as a pupil if he could pay the pupillage fees of 100 guineas to the pupilmaster and 10 guineas to the clerk. The fact that I had a van clinched the deal because the head of chambers was a devotee of auction sales and needed transport for the items which he  bought.

By 1981 the Senate of the Inns of Court and the Bar was issuing a Code of Conduct for the Bar of England and Wales. Annex 5 of the Code set out, in half a page, the duties of pupil-masters and pupils. The Code also stated that a barrister who acts as a pupil-master may not seek or accept nay pupillage fee. Again, that is it.

The serious point about this is that it could not happen in 2013. The current pupillage system is tightly regulated. For example, the Pupillage Handbook, issued by the Bar Standards Board in September 2013, is 61 pages long plus appendices. Its stated purpose is to ensure adherence to the rules and procedures pertaining to pupillage and also to promote good practice and to achieve greater consistency between pupillages through the provision of information and advice.


Crackdown on Benefit Cheats

It was reported yesterday (September 16) that “benefit cheats” could face up to 10 years in prison as part of the Crown Prosecution Service’s new “tough stance” on those flouting the system.

The justification for this is financial: the DPP has stated that benefit and tax fraudsters cost the taxpayer £1.9 billion a year and that the cost to the nation incurred by benefit fraud should be at the forefront of lawyers’ minds when considering whether a prosecution is in the public interest.

With the greatest respect to the DPP, cost is not in the forefront of my mind, but if we look at money issues, the annual cost of keeping a person in prison is £37,000. Thus a ten-year sentence would cost the taxpayer £370,000.

Further, the forefront of my mind is concerned with justice rather than money. Perhaps the DPP should consider the human and financial cost of the illegal Iraq war, which puts the cost of UK benefit fraud in the shade, and should proceed urgently with the investigation of those alleged to have committed war crimes.

 


Shelley on Power

The man

Of virtuous soul commands not nor obeys.

Power like a desolating pestilence

Pollutes whate’er it touches: and obedience,

Bane of all genius, virtue, freedom, truth,

Makes slaves of men, and of the human frame

A mechanised automaton.

 


Miners’ Compensation

Miners’ compensation

It was reported in 2009 that a firm of solicitors had agreed to repay money which was deducted from miners’ compensation claims and paid to a claims management company. The following points emerged:

·         The firm admitted breaches of professional rules.

·         It had acted for a number of claimants who had registered claims with the DTI under a scheme to compensate coal miners and their families for respiratory diseases and vibration white finger.

·         The firm had bought the claims from Freeclaim IDC, a claims management company.

·         The chairperson of the Solicitors Regulatory Authority is reported to have commented that complaints about the miners’ compensation had seriously damaged the reputation of the profession.

·         In May 2006 an MP stated in Parliament that solicitors, claims handlers and some trade unions had raided victims’ compensation. There had been a feeding frenzy.

·         Of 427,969 claims for compensation which had been settled, approximately 60,000 were settled for less than £100.

·         In 65 per cent of the cases, average fixed costs paid to solicitors had exceeded the amount of compensation paid to the miners.

One solicitor reportedly made £13 million in 2006, mainly from industrial disease cases.

The scam was reported as deluding people and taking payments from their compensation. This could not have gone on without collusion between solicitors, claims handlers and some trade unions.   

The company reportedly handled 5000 cases a week. The defendants’ insurers refused to pay out on £1250 insurance policies which claimants were obliged to take out. Tactics involved  high-pressure sales tactics by unqualified intermediaries

The national press described this affair as a series of money scandals which had seriously, perhaps irrevocably, tainted the reputation of English lawyers.

 

In January 2009 James Beresford and Douglas Smith, solicitors, were ordered to be struck off. The Solicitors Disciplinary Tribunal found that they had breached Solicitors Practice Rules as follows:

  • A conflict of interest between their own interests and those of their clients.
  • Failing to act in the best interests of their clients.
  • Entering into a sham agreement with the Union of Democratic Mineworkers (UDM).
  • Sharing professional fees with a non-solicitor.
  • Improperly releasing confidential information.
  • Failing to give their clients sufficient information about costs.

Beresford and Smith were reported to continue to deny all the allegations and to intend to appeal.

The following points were made to the tribunal:

  • Beresford and Smith’s firm had expanded remarkably after the government set up a compensation scheme for former miners whose health had been permanently damaged by underground work.
  • In 1998 British Coal (as it then was) was found liable for vibration white finger and for chronic lung disease caused by coal dust. Beresford and Smith’s firm then had 10 employees and its annual income was reported to be £684,000. In 2006 the firm made a profit of £36.2 million. £23.2 million was paid to Beresford and Smith.
  • 80 per cent of the firm’s income was from the coal health scheme. The firm registered 97,500 claims. There was no evidence that clients were informed, as they should have been, that the government would pay solicitors’ fees and that other firms were not charging success fees.
  • Thousands of UDM claims came to the firm through a company known as Vendside. This was a claims handling company wholly owned by the UDM. Beresford deducted £300 from each client who received compensation. This was paid to Vendside.
  • The widow of a miner was offered £281.77 compensation by the government. Beresford’s firm had been paid £2,431.08 by the government to handle the claim. The firm charged the widow a £64.04 success fee, reducing her compensation to £217.73.  

In December 2009 it was reported that Beresford and Smith’s appeal to the High Court had been unsuccessful. The court commented that the Solicitors Disciplinary Tribunal made a cumulative series of findings of very serious misconduct on a huge scale and in relation to thousands of vulnerable clients in proceedings which were expensively contested in nearly every particular.  


Saudi Arms Inquiry

Saudi Arms Inquiry

The story of the Saudi Arms Inquiry throws mainstream criminal law and criminology theories into chaos and illustrates the application of English criminal law in favour of one class.

The inquiry involved allegations of massive corruption. No prosecutions were brought in the “interests of the state”. This can be compared with thefts of small amounts of property resulting in prison sentences.

In December 2006 the Serious Fraud Office abandoned its investigation into a multimillion pound arms deal between BAE and Saudi Arabia. This followed a private threat from Saudi Arabia that intelligence cooperation with Britain would be cut unless the inquiry was abandoned. The Attorney-General stated that the decision to end the inquiry had been taken in the public interest. The investigation would cause serious damage to UK/Saudi security, intelligence and diplomatic co-operation. It would be likely to have seriously negative consequences for the UK public interest in terms of national security and foreign policy objectives.

The inquiry concerned allegations that a multimillion pound slush fund was linked to the deal. The Saudi government had threatened to cancel a £10 billion order for 72 Eurofighter Typhoon jets.

In April 2008 the High Court ruled that the decision by the government and by the Serious Fraud Office to stop an investigation into allegations of corrupt dealings between BAE Systems and Saudi Arabia was a threat to the reputation of British justice, unlawful and an abject surrender.

Lord Justice Moses and Lord Justice Sullivan are reported to have made the following comments:

·         They feared for the reputation of the administration of justice if it could be perverted by a threat.

·         Any similar future unlawful threats to the rule of law must be resisted by the government, or the courts would intervene.

·         No-one is entitled to interfere with the course of our justice. The rule of law is nothing if it fails to constrain overweening power.

·         The Director of the Serious Fraud Office had ceased to exercise the power to make the independent judgment conferred on him by Parliament.

·         The Director (in reality the government) contended that he was entitled to surrender to the threat and that such threats were a part of life. So bleak a picture of the impotence of law invited at least dismay, if not outrage.

·         The government had failed to recognise that the threat uttered was not simply directed at this country’s commercial, diplomatic and security interests but was aimed at its legal system.

·         If such a threat had been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice.

·         There was no evidence that any consideration had been given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat.

On appeal to the House of Lords (2008) by the Director of the Serious Fraud Office, the appeal was allowed. The Lords stated that where he took the view that protecting the lives of British citizens outweighed the public interest in pursuing an investigation into allegations of corruption, the Director was entitled to exercise his discretion to discontinue the investigation, following threats by a foreign state as to consequences affecting national security if he did not do so.

The issue was not whether he had been right or wrong but whether the decision was one which he was lawfully entitled to take. In the opinion of the Lords, it had been.

 

 


Tolstoy on Law

Tolstoy, Count Leo Nikolayevich (1828-1910)

Tolstoy has been described as a writer, aesthetic philosopher, moralist and mystic, the greatest European novelist. War and Peace and Anna Karenina are generally acknowledged to be the two greatest novels ever written. Tolstoy read law at Kazan University.

During the last twenty years of his life he wrote a number of essays expounding an innovative brand of non-violent anarchism, including the following commentary on law:

·         Laws are framed, and repealed, by human beings. It is not some sociological “iron” law, but ordinary man-made law, that produces slavery. The slavery of our times is very clearly and definitely produced by human enactments: about land, about taxes and about property.

·          There is one set of laws by which any quantity of land may belong to private people, and may pass from one to another by inheritance, or by will, or may be sold; there is another set of laws by which everyone must pay the taxes demanded of him unquestioningly; and there is a third set of laws to the effect that any quantity of articles, by whatever means acquired, may become the absolute property of the people who hold them. And in consequence of these laws, slavery exists.

·         We are so accustomed to all these laws, that they seem to us just as necessary to human life, as the laws maintaining serfdom and slavery seemed in former times. No doubts about their necessity and justice seem possible, and we notice nothing wrong in them. But just as a time came when people, having seen the ruinous consequences of serfdom, questioned the justice and necessity of the laws which maintained it, so now, when the pernicious consequences of the present economic order have become evident, one involuntarily questions the justice and inevitability of the legislation about land, taxes and property which produces those results.

·         Land ownership: history shows that property in land resulted from the seizure of the common land by conquerors and its distribution to those who served the conquerors.

·         Taxes are taken by those who have the power to take them.

·         People formerly established laws enabling some people to buy and sell other people, and to own them, and to make them work, and slavery existed. Now people have established laws that men may not use land that is considered to belong to someone else, must pay the taxes demanded of them, and must not use articles considered to be the property of others – and we have the slavery of our times.

·         The essence of legislation is organised violence. According to science, legislation is the expression of the will of the whole people: but as those who break the laws, or who wish to break them and only refrain from doing so through fear of being punished, are always more numerous than those who wish to carry out the code, it is evident that legislation can certainly not be considered as the expression of the will of the whole people.

·         There is one characteristic common to all laws, namely, that if any one man does not fulfil them, those who have made those laws will send armed men, and the armed men will beat, deprive of freedom, or even kill, the man who does not obey the law.

·         For every non-fulfilment of the established laws there is punishment: the offender is subjected, by those who make the laws, to blows, imprisonment or even loss of life.

·         Everywhere and always the laws are enforced by the only means that has compelled, and still compels, some people to obey the will of others, by blows, by deprivation of liberty and by murder. There can be no other way. It cannot be otherwise. For laws are demands to obey certain rules, and to compel some people to obey certain rules can only be done by blows, by deprivation of liberty and by murder. If there are laws, there must be the force that can compel people to obey them. There is only one force that can compel people to obey rules (to conform to the will of others) and that is violence; not the simple violence which people use on one another in moments of passion, but the organized violence used by people who have power in order to compel others to obey the laws that they, the powerful, have made, in other words, to do their will.

·         The essence of legislation lies in the fact that people who wield organized violence have power to compel others to obey them and do as they like.

·         Laws are rules, made by people who govern by means of organized violence, for non-compliance with which the non-complier is subjected to blows, to loss of liberty, or even to being murdered. 


Charity Law

Charity Law

This is an industry in itself. Charity law is a massive subject in its own right, overlapping significantly with company law, trusts law and tax law. The basic motivator of the charity law industry is tax avoidance.

The role of charity law as an element of the traditional legal system, and as a commodity, is illustrated by the cost of charity law textbooks, for example:

Picarda, Law and Practice Relating to Charities:       £325

Who’s Who in Charities          £257

Luxton, Law of Charities       £225

Charity Market Monitor          £370

Leadership in Nonprofit Organizations A Reference Handbook £205

Top 3000 Charities      £280

Law of Charities in Ireland     £120 .

Charity law reflects the institutionalisation of philanthropy as part of the edifice of English property law. The complexity of charity law, and its close relationship with tax and company law, reflects an increasing reliance on “charity” as the gains made by the welfare state are rolled back.

English charities are granted fiscal privileges by the law. These privileges are not universal but are granted to selected charities, for example Eton College, the British Goat Society and the British Society of Dowsers. Charitable status is withheld from organisations aimed at changing the law.

The key to understanding the true role of charity law is that it provides for tax exemptions. As with most other issues surrounding the English legal system, the answer is money.  

 Charity, it has been commented, involves the expectation of gratitude and admiration for the giver and the stigmatising status for the receiver of being a beggar. These concepts have no place in relationships based on social and economic rights rather than vague moral obligations on the part of the haves towards the have-nots.