Equity will not act in vain

You don’t need any technical legal knowledge to understand the logic of this maxim. Put another way, the policy is that courts will not make orders that cannot be enforced because anything seen to be in the nature of an idle threat destroys credibility.

During the last few days we have seen the debate raging about the apparent breach, on Twitter, of superinjunctions obtained by wealthy celebrities.  What is interesting (apart from trying to track down the tweets) is the jurisdictional aspect.

Apart from the fact that the tweeter is anonymous, some suggest that the disclosures bring no consequences because they were made from the US. Actually it is not simply a case of getting on a plane and going to another country to circumvent the jurisdiction of the UK or other domestic courts.  That is a hole that can be plugged in line with principles applied in other realms of intellectual property and publication.

It still creates difficulty, and perhaps there is no huge amount of sympathy with all the outcry that there has been about superinjunctions.

It may be that there is no more sympathy for US billionaire hedge funder, Louis Bacon, if he is unable to enforce Mr Justice Tugendhat’s order in the High Court on Monday.  Experts say that US-based companies could ignore or refuse to comply.

These are disturbing signs.  I don’t say that because it is my industry and I am worried about my livelihood.  The risk is that others follow suit (forgive the pun) and we have a free for all.

In many respects, the administration of the court system is already in a mess.  We don’t want to add to that the dilemma of our judiciary being undermined.

Money down the drain - part 2

Congratulations to a south-coast employment tribunal office that has really got to grips with the technology to improve efficiencies and save money.

We recently filed an ET3 - response to an unfair dismissal claim - on behalf of an employer client, together with a detailed reply to the claim and copy documents. There were 37 pages in all and we sent them as attachments to e-mails.

We know those arrived safely thanks to the automatically generated receipts that always come from the Tribunal Service but it’s good to have the one-page standard letter acknowledging the response has been received within the prescribed time.

As ever, we asked for correspondence to be sent by e-mail – it’s an option on the standard form.

Not only did we get the one-page standard letter by post - attached to it we have all 37 pages that WE e-mailed to the Tribunal, printed, stapled and put in an envelope bearing £1.49 postage.

I wonder what is the total cost of the postage, consumables and time to perform this exercise and how many times does it happen every day, week in, week out. Needlessly.

The Treasury Solicitor’s office deserves a brief mention too for its consistent practice of sending communications by post (including two-liners in a A4 brown envelope) that have already been sent to a high quality laser-jet fax printer.  I expect they put the letters in the envelope and send them to the post room after they had been faxed “because it is what we have already done”.

The leading contender for some sort of prize at the moment has to be the MoD for this spectacular effort...

A friend - son of an old friend - recently had some problems with his knee whilst serving in the Navy.  It seems the surgery was successful and the problem with the knee is no doubt a fading memory.

What is more difficult to forget is the manner in which his final check-up and discharge was handled.  For no other reason than that he was stationed in North Yorkshire at the time of the problem and surgery, the Navy required - and fortunately for him, paid - him to travel from Crewkerne to Darlington to see the specialist.

Darlington and back - 650 mile round trip.  Here to Yeovil, the nearest hospital and within 5 miles of Yeovilton air base - 9 miles.  If it had to be a naval hospital then Portsmouth and Plymouth are considerably nearer.

The appointment lasted... 4 minutes.

Just what is going on??

Money down the drain

It seems the failure of HM Revenue & Customs to issue notices of new tax coding in Form P6(T) is widespread. We are not the only employers in our area who had to telephone the tax office before the end of April and obtain new codes verbally, to be confirmed. Now the P6 notices are filtering through.

I had five in the post on the same day - in three separate envelopes.  Why not one?

How many hundreds, thousands maybe of pounds are wasted because HMR&C cannot deploy systems and technology to batch print and post all the notices that are due simultaneously to go to the same employer at the same address?

Why aren’t they e-mailed, anyway? 

Simple things, easy balls - probably the tip of an iceberg.

What is the point of collecting taxes to be wasted by this sort of inefficiency? 

Deep down in places you don't talk about at parties

It has to be right, whatever indignation some may feel, that people are asking the sort of questions they are in the aftermath of Bin Laden’s death. If nobody asked - or if they were silenced – how could we claim to be truly a democracy and stand for all that is good?

Appropriately, Question Time yesterday evening spent most of the time debating the death, as well as the manner in which key information was obtained.

It was perhaps unfortunate that the main question prompting the debate was predicated on the basis of an assumption that Bin Laden was shot with no intention or attempt by Special Forces to take him alive.

There was also the sub-debate about how key information may have been extracted at Guantanamo Bay using enhanced interrogation techniques (i.e. torture).

For me it brought to mind that powerful speech from Jack Nicholson at the climax of A Few Good Men:

Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...

You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline.

I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it. I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!

I guess that what many people would like to know and believe is that come the moment it was impossible to eliminate all the risks that Seal Team Leader reasonably anticipated against all the background knowledge and intelligence – that it just was not feasible to give the benefit of the slightest doubt to a dangerous opponent in the arena of war.

Paddy Ashdown, a wise man with perhaps unique qualification to comment on such situations, was right that a concept of non-judicial execution is beyond contemplation.  The vast majority of people can see that, if they struggle a little more with waterboarding.

One thing is clear - the rule of law must be sacrosanct.

The real culprits!

Amidst all the other fun and games on civil litigation, notably personal injury, funding people seem to have overlooked an interesting and authoritative slice of data that I saw mentioned in a very short column a few weeks ago.

A recent academic report has suggested that delays by defendants are driving up the costs of personal injury and clinical negligence claims. The study was commissioned by claims referrer National Accident Helpline (“NAH”) and conducted at the University of Lincoln.

Highly respected Lincoln Law School Professor John Peysner and his team analysed nearly twenty thousand cases supplied by NAH.  Delays by defendants and their insurers were found to cost an average £57.83 per day, compared with only £8.49 a day generated by all other causes of delay.

“All other causes” would include claimants and their lawyers who, according to the Association of British Insurers and some of their leading names are responsible for inflating costs of the system.

So there you have it.  An academic study by a leading authority on the subject finds out who is really responsible for pushing up your motor insurance premium. 

No surprise – it’s those that shout loudest that it’s somebody else’s fault.

Happy retirement?

I just posted an article on my website about the latest state of play with the abolition of the default retirement age.

It’s still going to be possible to dismiss fairly on the grounds of age but only with objective justification.  The informed view is that this will be too difficult for most employers so the answer is likely to lie in improved appraisal and performance management systems.

It’s all logical.  If in the course of getting older, people become less capable they face the consequences of that in the same way as their younger counterparts.

And if despite apparently advancing years there is no impact or they just get better at what they do, there should be no issue.

But aren't we missing something here?  I bet the majority of people have always accepted – and many of them gladly so – that they will retire at a certain age.  Those that do not want to put their feet up take other jobs anyway. B&Q springs to mind as a champion of the more mature workforce.

But 65 or whatever age it may have been will no longer represent a milestone, an achievement, an exit from the rat race.

It may be at about the same time, later, or it could well be sooner that senior staff find themselves told that it’s time to go because they are no longer capable – just to add to growing fears that it might be so.

How does that reconcile with the concept of dignity at work? Surely there is still much to be said for the carriage clock and party instead of being quietly ushered out with mutterings of “past it”.

Pat on the back - or tap on the shoulder?

Cheers, suckers !

I saw an article yesterday reporting the delight of liability insurers at the news that the Ministry of Justice will now implement Lord Justice Jackson’s civil costs recommendations.

It’s understandable.  They must be creased up in laughter at the supposedly intelligent people responsible for this decision, who seem to have swallowed all the baloney dished up.

Nick Starling at the ABI is quoted as saying “these reforms are good news for genuine claimants, who too often struggle to get fair compensation under the current system”.

How touching. How caring.

The reason why genuine claimants too often struggle to get fair compensation is that liability insurers will stop at nothing to prevent them from getting it.

And when “ambulance chasing lawyers” step in to make sure that justice is done, the game plan is simple.  Fight it all the way, run up a massive bill of costs and then squeal to the world that the lawyers are getting rich and spoiling the game.

Here’s an example, from personal experience…

A teenage girl, a farmer’s daughter, was crushed by a bull whilst she was working at a neighbouring farm.  She was not badly physically hurt but she did suffer a significant psychological injury as a result of being pinned to the wall by the huge beast.

An old style claims handler from a familiar big name nursed it carefully for nearly three years to the point where the young lady was on the verge of signing the agreement that was pre-requisite to payment of her £1,500 in compensation.

Father insisted that she should consult solicitors before signing. Of course we had to begin proceedings fairly quickly because the friendly claims handler had almost run it past the limitation date but we made a very early Part 36 offer to settle at £10,000. That was still a bargain for insurers but the client had reasons to do a deal at that level.

Her case went to trial on quantum. The award was nearly £35,000 with premium interest. Indemnity costs for most of the proceedings ran out at about the same level, also with premium interest.  So that was £70,000 for the claimant camp.

Our opponents were perhaps remunerated at the reduced rates that were the corollary of guaranteed work flows.  Even so, one can guess that the total bill would have been £90,000, if not more.  It could easily have been less than £15,000, by agreement - and no hard feelings.

This is the sort of case to which liability insurers will point and whinge about fat-cat ambulance-chasing lawyers.

Remember the bullies at school?  What did they do when the quiet but fearless kid stepped in to stop them from stealing off the others and knocking them about?  They ran off to the teacher howling.  

I remember teachers who were a lot more perceptive than the people at the Ministry who apparently cannot, or do not want to, see the obvious and grotesque truth.