Archive for February, 2016

Unrepresented claimants: specimen opening statement

Specimen opening statement for an unrepresented client

  • Ask the court or tribunal for permission to make a brief opening statement.
  • Explain one’s own position so far as any or all of the following apply: limited financial means, no legal training or background, inability to obtain representation because of lack of money. Employment, medical and family status. Legal aid not available. No legal expenses insurance. Not a member of a trade union. Unable to obtain conditional fee. Have approached local Law Centre and charitable bodies for example the Bar Pro Bono Unit, without success.
  • Draw the attention of the court or tribunal to the overriding objective of the Civil Procedure Rules. The overriding objective of the Rules is to enable the court to deal with cases justly. This includes ensuring that the parties are on an equal footing.
  • Submit that the parties are not on an equal footing because the defendant has legal representation which he can afford, whereas the claimant does not.
  • Draw the attention of the court or tribunal to Article 6 of the European Convention on Human Rights: in summary, everyone is entitled to a fair trial. Submit that there is a danger of this principle being breached where one party can afford representation and the other side cannot.
  • Draw the attention of the court or tribunal to the decision of the European Court of Human Rights in the case of Airey v Ireland (1979) 2 E.H.R.R. 305, where that court ruled that there had been violations of Article 6 because Mrs Airey did not enjoy an effective right of access to the Ireland High Court to seek a decree of judicial separation. Legal aid was not available for the purpose of seeking judicial separation and Mrs Airey had insufficient means to pay the cost of proceedings herself. The court made the following points:
  • The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.
  • The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.
  • It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.
  • Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
  • Point out to the court or tribunal the decision in Bertuzzi v France (2003). In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.
  • The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:
  • The relevant authorities should have arranged for a replacement who would provide B with proper assistance.
  • Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.
  • The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
  • State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.

Derbyshire waste management crushing death: £136,000 fine

Waste management crushing death: £136,000 fine

Health and Safety Executive v Rainbow Waste Management Ltd (2016) Derby Crown Court, February 24

Rainbow Waste Management Ltd has been fined following the death of a worker.

Significant points of the case

  • In June 2013 Ashley Morris, an employee of the company, was working at its site in Swadlincote, Derbyshire.
  • He was operating a motorised loading shovel. The bucket of the machine crushed him. He suffered fatal injuries.
  • In the 10 days before the incident, CCTV cameras at the site recorded more than two hundred unsafe working practices. These included dangerous operations with the loading shovel, for example workers being lifted in the machine’s shovel and having to take evasive action to avoid contact with moving vehicles.

The company was fined £136,000 plus £64,770 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

Free employment advice: the practical realities

  • Website. My free employment advice website – www.freeemploymentadvice.co.uk – operated to provide free or low cost advice for people with employment law problems. It contained information on a number of areas of employment law and offered advice by telephone or email. The initial telephone or email advice, if brief, was free. Further advice was available for a small fee. A standard charge of £100 was made for an initial conference, regardless of its length. The website received, on average, 10 requests a week. Many of the enquiries were clients driven into mental illness by their workplace experiences and by the cost, delays and complexity of the legal system. They had started down the civil procedure road confident that they would obtain justice. As the case proceeded, their optimism changed to bewilderment and disillusion. Their savings disappeared. These were people with a partial grasp of the details of law and procedure, obsessed with the fine detail of their case, doomed to wander the obscure byways of English law and procedure until their money was gone, their spirit broken and their illusions as to English justice shattered. Their initial naïve belief that they would get justice or have their day in court soon disappeared.The majority of enquirers had some idea of their employment rights but most became lost in a fog of incomprehension and despair as they discovered how complex and opaque the law is, and how difficult it is to deal with procedural points. In almost every case, the root of the problem was money.
  • Typically, the enquirers were unemployed, poor and desperate. Many of them had been dismissed or made redundant. They might complain of discrimination, bullying and harassment. They might have been made ill by workplace conditions. One thing which almost all of them had in common was that they could not afford advice and/or representation through the mainstream legal profession. Most were not members of a trade union, nor did they have legal expenses insurance. Many had approached the Citizens’ Advice Bureau for help and some had contacted Law Centres, only to be told that the Centres were fully occupied and could not take on any more cases.

Working with these clients for free or for a small fee is difficult. The facts are often complex and may involve detailed allegations of bullying or harassment over long periods of time. Medical evidence is normally crucial and expensive to obtain.

Scottish farm grain bin asphyxiation: health and safety prosecution

Farm grain bin asphyxiation: £45,000 fine

Crown Office and Procurator Fiscal Service v Seamore Farming (2016) Jedburgh Sheriff Court, February 22.

A Scottish farm has been fined after a worker was killed in a grain bin.

Significant points of the case

  • In August 2014 Zach Dean Fox, aged 19, was working at Seamore Farming’s farm in Hawick. He was trying to clear a blockage in a large metal container used for grain storage.
  • The blockage was in an exit space at the bottom of the bin which still contained a quantity of grain. He became immersed in free-flowing grain and died from asphyxiation.
  • The system of work in place to clear blockages in the bin was inherently unsafe.

Seamore Farming was fined £45,000 for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

An HSE spokesperson commented after the case that the dangers associated with working within the confined space of grain silos and clearing blockages in grain silos are well known within the farming industry and well documented in HSE guidance. Farmers should ensure that they have a safe system of work in place for clearing blockages which avoids the need for anyone to enter inside them.

Gifts to solicitors: the blush test

Gifts to solicitors

The English Bar has recently been concerned about hospitality, entertainment and gifts offered to solicitors by sets of barristers’ chambers. Barristers’ marketing budgets, apparently, now include sums for dinners, sporting and social events to which solicitors are invited. It was commented that there was no doubt that if there was evidence that barristers were receiving instructions in return for entertainment that would bring the Bar into serious disrepute.

It is well-known that many barristers who keep to the mainstream system of acting as consultants, and receiving work only through solicitors, offer their solicitor contacts hospitality and entertainment. In the view of the Bar’s governing body:

The indirect use of legal fees for entertainment purposes tarnishes the image and reputation of the profession, particularly if the entertainment offered is on a scale beyond the means of many consumers.

It was suggested that the “blush” test should be applied. This means:

Whether the individual entertained would be embarrassed to disclose it to his or her colleagues, clients or the regulating authorities. Or where the host would be embarrassed if the fact, or extent, of the entertainment were to become widely known. Of course, this test does not deal with the problem of those who find nothing to be embarrassed about.

Reports have been received of solicitors requiring payments to be made to them by barristers in return for work to be referred to barristers in criminal cases. This is forbidden by the Bar Code of Conduct. It is not clear how such payments are made. If cash is surreptitiously handed over, this may involve tax evasion or even moneylaundering issues.

Polish farm worker: arm amputated in potato grading machine: farm company fined

Arm amputation: farm company fined £15,000

Health and Safety Executive v WB Daw & Son (2016) Stafford magistrates’ court, January 27

A farm company has been fined following an incident in which a worker slost an arm in the rollers of a potato grading machine.

Significant points of the case

  • In November 2013 Marek Walisewski, a Polish worker, was cleaning the rollers of a potato grading machine at a farm in Staffordshire. The farm was operated by WB Daw & Son.
  • His duties included operating, cleaning and clearing blockages on the machine. He sat down under the rollers to clean them while they were moving, using a long screwdriver. The rollers drew his left arm into the machine. The crush injuries resulted in his arm having to be amputated.
  • Unsafe work systems were being used which involved cleaning and clearing blockages from the rollers while they were rotating under power.
  • The company had failed to give clear instructions to workers and failed to monitor their activities.

The farm company was fined £15,000 plus £25,000 for breaches of section 2, HSW Act, for failing to ensure the health and safety of employees, and under regulation 3, Management of Health and Safety at Work Regulations 1999, for failing to carry out a suitable risk assessment.

Alternative practice: seminars open to the public without charge

Seminars. Practitioners must comply with continuing professional development requirements, involving a set number of hours. These can be fulfilled by holding seminars. There is no reason why clients cannot be invited to seminars where the topic under discussion relates to their own problems. Unfortunately, the authorities now charge for accreditation of seminars, whether or not an entry charge is made, and this makes holding free seminars problematic. Again, the free market dominates. Since compulsory continuing legal education was introduced for all barristers, we have seen a scramble to turn this into a money-making opportunity. All kinds of individuals and institutions offer training courses to comply with the new regulations, at a high price. The progressive lawyer should, in any event, have kept up to date with his speciality, so that he can take on traditional lawyers on equal or better terms. Seminars, which count towards the continuing education requirements, can be offered free of charge and open to the public. In this way, free advice and information can be offered without any element of the patronising charitable ethic.

Exeter plumber fined for dangerous gas work

Dangerous gas work: plumber sentenced

Health and Safety Executive v Colin Jones (2016) Exeter magistrates’ court, February 17

Colin Jones, a plumber, has been sentenced for carrying out dangerous gas work.

Significant points of the case

  • Colin Jones moved a gas meter at a house in Exeter as part of refurbishment work. He then connected a new gas boiler to the meter. The householders smelt gas and notified the utility supplier.
  • The supplier found two gas leaks, one on the gas meter supply pipe and one on the gas pipe from the meter to the boiler. The situation was classed as immediately dangerous because there was a real risk of an explosion.

Jones was sentenced to 32 weeks imprisonment, suspended for two years, and fined £2000 for breaches of regulations 3 and 26 of the Gas Safety (Installation and Use) Regulations 1998.

An HSE inspector commented after the case that Jones had put his customers’ lies at risk by carrying out work on gas pipes and a gas meter which he was not legally entitled to do. It was only by sheer good fortune that the escaping gas did not ignite.

Sheffield recycling site death: exploding gas cylinder: Walter Heselwood Ltd fined £120,000

Recycling site death: £120,000 fine

Health and Safety Executive v Walter Heselwood Ltd (2016) Sheffield Crown Court, February 2.

Walter Heselwood Ltd, a scrap metal recycling company, has been fined following the death of a worker.

Significant points of the case

  • In June 2009 Tony Johnson was working at the company’s site in Sheffield. A pressurised gas cylinder was put through a shearing machine. It exploded and a large section struck Mr Johnson on the head. He suffered fatal injuries.
  • The company had no effective health and safety management system in place. It had failed to adequately assess the risks involved with processing different types of scrap material. It had also failed to put in place a range of measures to reduce risks.

The company was fined £120,000 plus £40,000 costs under sections 2 and 3, HSW Act, for failing to ensure the health and safety of employees and non-employees.

A spokesperson for the HSE is reported to have commented after the case that companies processing different materials should have good documented systems to ensure that materials such as pressurised cylinders are sorted and dealt with correctly.

Alternative legal practice: theoretical basis and practical issues

Campbell’s view (The Left and Rights) is that the radical lawyer is both tolerated and ignored. Tolerated because his existence seems somehow “good” for the profession at large – making it representative of all opinion – and ignored because what he does in the affluent liberal hour threatens no-one. The radical lawyer is entangled in a situation where he is committed to undermining the very structure which provides his own power base.

The theoretical basis of alternative practice involves the following principles:

  • Resistance to war, racism, discrimination and exploitation
  • Opposition to money fetishism
  • A commitment to demystification
  • The pursuit of social justice
  • Opposition to traditional formalities and conventions which hinder access to justice.Many English lawyers with a social conscience are so involved with making money or with the daily pressures of court work that alternatives to the current system are never considered. The great majority of lawyers, being essentially conservative, practise according to traditional conventions. The time demands of practice can offer few opportunities for lawyers to stand back and think about alternatives to mainstream practice. There is an almost unbridgeable gap between critical academic lawyers on the one hand, and coal-face practitioners on the other (although it is unrealistic to compare the daily work of the lawyer with that of the miner). The dynamics of daily practice can result in lawyers submerging their ideals to economic considerations and pragmatic results.Traditional practice as a barrister confirms, and indeed encourages, remoteness from the client. Barristers have traditionally kept clients at arms length through the rule that a solicitor must act as an intermediary. This principle has been eroded by the introduction of public access rights, but it is important to be aware that this relaxation was forced upon the profession in the teeth of determined opposition. The profession has always emphasised objectivity, detachment and the application of legal skills as a technical exercise.