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Archive for March, 2016

The law industry, money fetishism and the legal profession

The law industry

If all law were to be abolished, which is not necessarily to argue that it should be, then thousands of workers in the law industry would be thrown out of work. Police, prison officers, probation officers, court ushers, civil servants, judges, lawyers, paralegals, ancillary workers, workers in legal publishing and wigmakers – all have career structures built on the legal system.

 

It is a fundamental mistake to see this system as some sort of social service, or even as part of the state apparatus. Look at most firms of solicitors or sets of barristers’ chambers. The bottom line is not academic expertise, justice or state control. It is profit. This explains why so many small, socially conscious operations fail. Groups of lawyers whose commitment is to something other than money find it very difficult to survive without taking highly-paid work to boost their bank balances.

The reality is that many solicitors, barristers, legal executives and the whole panoply of the “justice” system see law as a way of making a good living.

This general criticism of lawyers as willing participants in the money-fetish society does not include the undoubted selfless dedication of many of those involved in law centre and advice work or on the radical fringes, who do not see themselves as acting in the commercial interests of the profession.

Money is a God not only in the legal system. Materialism throughout society is reflected in the practice of law. Money control of the legal system reflects increasing money-worship in British society. The fetishisation of money reflects its role as the supreme representation of social power, and the functioning of the legal profession is an exemplar of this representation.


Kent private swimming pool roof fall: solar panel company fined

Roof fall: £153,000 fine

Health and Safety Executive v PV Solar UK Ltd (2016) Canterbury Crown Court, March 21

PV Solar UK Ltd, a solar panel company, has been fined following an incident in which a worker suffered serious injuries in a fall through a fragile roof light.

Significant points of the case

  • In April 2013 a worker employed by the company was working on the roof of an outbuilding containing a swimming pool in Kent. He was replacing faulty solar panels.

The roof contained eight roof lights. He fell through one of these. He suffered a fractured shin and vertebra.

  • A scaffold tower, ladder and safety harness had been provided for the panel replacement work. None of the workers had received formal training or instruction on how to use them, which rendered the equipment useless.
  • Other measures could have been taken, including providing full scaffolding or hard covers for the rooflights.
  • The initial installation work in 2011 was completed without incident. However, the safety equipment provided on that occasion was also lacking. This placed worker at risk.
  • The company was served with a prohibition notice to stop unsafe work in Bristol in May 2011. It was therefore well aware of the need to ensure that adequate provisions were in place to prevent or mitigate falls during work at height.

The company was fined £153,000 plus £29,000 costs for three breaches of the Work at Height Regulations 2005


Pro bono and the charitable ethic: for whose good?

In 1957, Albert Camus was awarded the Nobel Prize for literature, with a prize of $42,000. He deposited the cheque in a bank in Stockholm and forgot about it until some months later, when he was asked by the bank what he wanted them to do with the funds.

Camus’ attitude to prizes and honours forms an interesting contrast with the ethos of lawyers’ charitable work. For example, in November 2009 it was reported that more than 50 “pro bono heroes” attended a Parliamentary reception hosted by the Attorney-General. She is reported to have commented that it was not in the nature of lawyers who acted pro bono to seek recognition or praise for their efforts. The reception was a way of celebrating the work of pro bono heroes. The glaring contradictions of this statement were not recognised.

 

Richard Abel, in English Lawyers between Market and State, makes the following comments on pro bono services:

  • They allow elite lawyers conspicuously to enact independence on behalf of vulnerable clients confronting powerful adversaries (frequently the state) thereby mystifying those lawyers’ profound dependence on a few large clients (many of which oppress and exploit the very same clients).
  • Pro bono services contain their own contradictions.
  • The recession was not in general a climate in which an extension of pro bono work was sought.
  • There is a fundamental contradiction between the Law Society’s exhortation that solicitors must run their practices on strict business lines and its message that they have surplus time, resources and cash to work for nothing to prop up under-funded organisations.
  • Claire Dyer wrote in the Guardian, June 3, 2003, that the reasons for pro bono work were “a complex interaction between professional idealism, political pressure and commercialism”.

 

Only lawyers?

  • Is the legal profession apparently the only group of professionals which feels it necessary, when it gives fellow human beings a helping hand without demanding money in return, to organise such actions into an institution, to give such actions a Latin tag, to bask in the assumption of public admiration, to accept plaudits at glittering social events and to reap commercial benefits from an improved public image?
  • Do any other professions have pro bono schemes? Are there pro bono plumbers or motor mechanics? Bookmakers? Doctors don’t do pro bono work because their work is funded by the state and runs parallel to a private system.
  • Do lawyers work for free because they are the only group of professionals with a social conscience?
  • If other groups of professionals do free work on a large scale, which is questionable, why is this so little publicised in comparison with lawyers’ pro bono schemes?
  • How do lawyers react to the argument that they make so much money that they can easily afford to do some work for free?
  • Another profession which is well-known for its readiness to do unpaid work is teaching. Many primary and secondary school teachers regularly take on unpaid professional activities beyond the scope of their contracts of employment. For example, a typical conscientious inner-city comprehensive schoolteacher may habitually spend about ten hours a week on unpaid out of school activities, including drama, adventure trips, fundraising activities, pastoral and advisory work. This work is not given a Latin label, receives little public recognition, will not lead to an award, and is not organised by a central body. There are no ceremonies for schoolteacher “pro bono heroes”.

Vicarious liability: landmark Supreme Court judgment: Cox v Ministry of Justice

VICARIOUS LIABILITY

Relationship between an individual and a defendant

Case  Cox v Ministry of Justice [2016] UKSC 10

Facts Mrs Cox ( C ) was employed by the MOJ as the catering manager at Swansea Prison. She was responsible for all aspects of catering including the operation of the prison kitchen. She supervised prisoners who worked in the kitchen alongside civilian staff. In September she told some prisoners to take supplies to the kitchen stores. On prisoner ( I ) accidentally dropped a sack of rice onto C’s back, injuring her. She brought a claim against the MOJ. At first instance the claim was dismissed on the basis that the prison service was not liable because the relationship between the prison service and I was not that of employer and employee. On appeal, the Court of Appeal reversed that decision. The MOJ appealed to the Supreme Court.

Decision      1. The appeal was dismissed.

  1. There were five factors which made it fair, just and reasonable to impose vicarious liability on a defendant where the defendant and the tortfeasor were not bound by a contract of employment.
  2. The first factor is that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against vicarious liability.
  3. The fifth factor, that the tortfeasor will have been under the control of the defendant, no longer has the significance it was sometime considered to have. In modern life it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the employment relationship.
  4. The other three factors are: the tort was committed as a result of activity being taken by the tortfeasor on behalf of the defendant, the tortfeasor’s activity is likely to be part of the business activity of the defendant and the defendant will have created the risk of the tort.
  5. A relationship other than ne of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendant’s business and for its benefit and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual.
  6. The defendant need not be carrying on activities of a commercial nature. The benefit which it derives from the tortfeasor’s activities need not take the form of a profit. It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests.
  7. Defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor.
  8. Activities assigned to prisoners who work in kitchens form an integral part of the activities of the prison. The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts, which is recognised by the provision of health and safety training.
  9. C was injured as a result of I’s negligence in carrying on activities assigned to him and the prison service was therefore vicariously liable.
  10. The criteria set out in the Christian Brothers case are designed to ensure that vicarious liability is imposed where it is fair, just and reasonable to do so.

 


The mystery of the law: statutes and cases: how to demystify?

Demystification methods

Statutes and Regulations

Many of these can be simplified by breaking them down into their essential elements, with bullet points and explanations of key words and phrases. Some statutory material, however, is totally incomprehensible and impossible to explain, even for the most highly qualified and experienced specialists. The only way forward for these rules is abolition and replacement with clearly-drafted material.

 

Case law

Most case law can be summarised so that non-lawyers can relatively easily understand the facts and the decision. But arcane analyses of, for example, tax law, are virtually impossible for anyone to understand and might best be consigned to history along with the thousands of dusty volumes which line library shelves, which are only ever looked at by students researching the history of particularly obscure legal concepts and which contain endless, opaque pages upon pages of incomprehensible judicial deliberation.

 

In legal proceedings, the classes speak different languages. Even the most basic legal concepts can be misunderstood by those victims of the system unfortunate enough to have missed out on a legal education. For example, the following conversation was recently overheard in an inner-city magistrates’ court:

Justices’ clerk – Do you plead guilty or not guilty?

Accused – I never done it.

Justices’ clerk – Is that guilty or not guilty?

Accused – I never done it.

Justices’ clerk – Is that guilty or not guilty?

Accused – Guilty.


Pembrokeshire farm silage fall injuries: family partnership prosecuted and fined

Fall injuries: Pembrokeshire family farm fined

Health and Safety Executive v Rees family partnership (2016) Haverfordwest magistrates’ court, March 14

The Rees family partnership has been fined after a worker fell through a skylight.

Significant points of the case

  • In June 2014 the partnership contracted EAC to carry out a one-day silage harvest.
  • An employee of EAC worked on sheeting the silage by lowering plastic sheeting from the roof of a cattle shed. This was not part of the contract but was under the direction of the Rees family partnership.
  • The worker tripped and fell through a skylight four metres to the concrete floor below. He suffered a fractured arm and serious bruising.
  • The work on the roof had not been planned and there was no safe system for the prevention of falls off or through the fragile roof.

The Rees family partnership was fined £5000 plus £1100 costs for a breach of regulation 6, Work at Height Regulations 2005.


The “art” of theadvocate: what is reality?

The “art” of the advocate is often seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.

A recent scheme to assess and approve the quality of advocates has been introduced by the Bar Council – perhaps this implies that things are not so perfect as is often implied?

The supposed image of calm efficiency in the courts is very different from the chaos which can reign in reality. Documentation is often faxed through the night before a trial and if a judge demands that papers should be reorganised, advocates may find themselves kneeling on the floor outside the court to comply with this judicial diktat.

Jacques Verges is a French advocate who has represented, among others, Carlos the Jackal, Slobodan Milosevic and Klaus Barbie. A DVD which “attempts to illuminate the mystery behind this enigmatic and controversial lawyer” was described by English reviewers as telling the story of a man who had polluted the principles of advocacy.

In the annual law reform lecture at Inner Temple (November 2010), Lord Justice Moses is reported to have made the following comments:

  • The Court of Appeal do not sit and listen to the summing up: indeed, if they had to, few would remain awake for longer than 30 minutes, even with the aid of a flacon of Portuguese smelling salts.
  • Trial judges are fearful of the expense and distress of a re-trial, and it is that which leads them to this endless exercise in composing a defensive summing up, a summing-up crafted to defend the trial from appeal.
  • In trials lasting more than a week, the judge should provide regular written and oral summaries.
  • A criminal trial costs about £4,300 a day and £7,000 a day at the Old Bailey. Summing-ups regularly last a day in trials lasting more than two weeks.
  • There were 389 such trials in the year to April 2010. £4,000 or even £7,000 is an expensive ticket to listen to a replay of the drama delivered in monotone.
  • The judge’s summing up is a frequent source of appeals against conviction.
  • Conviction appeals cost about £14,000 a day.

Battersea crane collapse: two dead: £750,000 fine for crane company

Crane collapse: worker and member of the public killed: company fined £750,000

Health and Safety Executive v Falcon Crane Hire Ltd (2016) Southwark Crown Court, March 15

Falcon Carne Hire Ltd, a national crane company, has been fined following the death of two people when a crane collapsed.

Significant points of the case

  • In September 2006 sections of a tower crane on a housing development in Battersea separated when 24 bolts failed from metal fatigue. The crane operator was killed when he fell from the crane. A member of the public was killed when the crane fell onto him.
  • The company had not investigated a previous similar incident when the bolts failed and had to be replaced.
  • The company had an inadequate system to manage the inspection and maintenance of its fleet of cranes. Its process to investigate the underlying cause of components’ failings was also inadequate. The bolts were a safety-critical part of the crane. Their previous failure had been an exceptional and significant occurrence which should have been recognised by the company.

Falcon Cranehire Ltd was fined £750,000 plus £100,000 costs for breaches of sections 2 and 3, HSW Act, for failing to ensure the health and safety of employees and non-employees.


National Living Wage (NLW) comes into force on April 1st – but is it all it is cracked up to be?

On 1st April all employers must pay employees over the age of 25 the new living wage – £7.20. On the surface, this seems a positive step towards greater employee rights. However, as has been reported over the past few weeks, the consequences of implementing a 50p per hour jump has led some employers to revisit their employment practices.
It has been reported that Next, Whitbread, Tesco and B&Q, some of the largest employers in the UK, have cut overtime and reduced recruitment, with changes to night work pay and additional pay for completing hazardous work (such as forklift truck driving) also suggested. The Institute of Economic Affairs has described the move as “a tax on businesses employing low-skilled workers”, warning that there could be a move towards even greater use of zero-hours contracts and unpaid internships as an alternative.
The Office of Budget Responsibility has also suggested that the NLW will cost 60,000 jobs by 2020 in the lower-skilled working sector. The also predicted that some of the costs will be passed on to consumers. So while people may have, on average, and extra £28 per week in their back pocket, costs of goods and services may well increase.
Alongside these changes are the well documented reductions in the welfare budget – with more announcements on this expected in his Budget later today (16th March 2016). In real terms, cuts to working tax credits and housing benefits also leave those on lower income out of pocket. From April 2016, those out of employment, either due to sickness or disability, or through being a jobseeker will be reduced to £73.10 per week.
Universal Credit, which replaces a number of working age benefits, can be claimed for those on low incomes. The basic personal allowance is £317.82 per month for single people without children over 25, although additional elements can be added up to a maximum of £1517. This is reducible by 65p for every £1 earned over “work allowance”, currently at £111 per month, and limited to those with savings under £16,000, even if applying as a couple. However, from 11th April 2016 claimants must have responsibility for children and/or a limited capacity to work in order to claim. The monthly work allowance will be either £192 if housing support is included or £397 if not. There will no longer be support for those simply in lower incomes.
On these figures then, currently it would take only 15 hours of work per month to reach the limit where universal credit is reduced. A 65% taper then still applies, meaning that for every hour worked, people lose £4.68 in their universal credit. It would therefore take only 82 hours of working at the NLW per month, or 20 hours per week, before entitlement completely reduces, assuming qualification in the first place.
Suddenly an increase of 50p per hour doesn’t look as generous to employees as first thought.


The boredom of advocacy: rarely admitted

 

The sheer, mind-numbing boredom of courtroom advocacy is rarely admitted. The detailed, endless preparation, the waiting in draughty corridors, the tiresome repetition of evidence and counter-evidence, the predictably bad-tempered judge, the waiting for the jury to return. The interminable waiting on draughty station platforms for the train to Snaresbrook for the plea in mitigation for £50, the standing on crowded trains for the case management conference in Merthyr Tydfil for £30.   The egotism of the advocates who love to be “on their feet”. The dressing-up, the dressings-down. The judge who was obviously bullied at his public school and who subconsciously returns the favour to his subordinates throughout his working life.

The mystique of oral advocacy can be a gift to those who love the sound of their own voices. It is now generally accepted that the English tradition of oral adversarial advocacy involves a massive waste of time, and therefore money.

Even the supposedly glamorous side of the trade, the Crown Court trial, has its great share of tedium. The trial process itself appears endlessly repetitive. Cross-examination, hailed as an art form, consists largely of repeating over and over again, questions to expose supposed inconsistencies in evidence.

And the waiting – nothing to do but wait – for the judge, the jury, the court. Hours of lost and wasted waiting time. Advocates in the Crown Court adopt a particular style of deference towards the judge – a deference which has been honed by convention over the centuries.

The speech to the jury – repeating everything the jurors already know and the judge’s summing up which repeats it all over again. This can be more than the normal person can stand