Wednesday, December 27, 2006

Riding the Magic Carpet (Part 1)

This book review was published in Issue 58 of The Surfer's Path in December 2006. A different review of the same book can be found here.

'Riding the Magic Carpet' by Tom Anderson (Summersdale Publishing) tells the story of a guy from South Wales who dreams of riding the right hand point break at Jeffrey's Bay in South Africa. This in itself might seem peculiar since these days one might expect grommets to be dreaming of perhaps Pipeline or Mavericks. A little bit like dreaming of climbing Mont Blanc or Kilimanjaro rather than Everest. Worthy and undoubtedly a wonderful thing to do, but an unusual dream. However, the early 1990s were unusual times and the combination of the release of Nelson Mandela, the ending of apartheid and the best surfer in the world was simply too much. The images of Tom Curren taking his first ride at J-Bay were forever etched in the author’s mind and associated with the ending of tyranny, indeed with freedom itself. The metaphor of South Africa’s waves opening up their faces to the world is both original and resonates on many levels.

The journey takes him from the beach breaks of France to the cold water of the Orkneys and Scotland's famous right hander at Thurso East. Further afield, he earns his spurs on waves ranging from Sri Lanka to Uluwatu in Indonesia.

There are many stories of obsession down the ages. Examples include Ahab's search for Moby Dick or Marlow's journey up the Congo in search of the charismatic Kurz in Heart of Darkness. However, this book doesn't contain the depth of horror often seen in such works and those inspired by them like Apocalypse Now or more recently The Beach and for those looking for emotional gore, there may be disappointment.

Instead, this book is more akin to the epic adventure stories. In these, the traditional hero hears the call to adventure and in answering it embarks upon a journey which ultimately rewards him with enlightenment. These range from the travels of Odysseus to those described in The Alchemist and The Little Prince. The two most interesting parts of the book come when the writer is facing one of his greatest fears: inability to surf. So, in Mundaka, it takes him a number of trips to even see a single wave and when it finally does happen, he smashes his board. This was all the more so when the writer broke his leg and ended up supporting his girlfriend on a surf trip which included Pavones in Costa Rica. It was here that the real enlightenment came and for me, the best bit of the book, when he described how he came to understand the value of the gifts his father's generation had given him through the hours they had spent teaching him about surf lore and wisdom: “These patient characters had sat there for hours on end, without needing an injury to keep them from wanting to surf themselves, filming kids for no other reason than handing the gift of wave knowledge on through the generations.” In this respect, it is similar to that which makes Fever Pitch such a great football story in that it highlights the fact that it is in the difficult times that the real character of the surfer or the football fan takes its form. A small point is that it is perhaps a shame that the issue of the son taking on the father’s mantle and the relationship to the preceding generation was not explored in more detail.

As for the arrival at J-Bay, the ending is possibly a little too perfect and rose-tinted although given the honesty with which the obsession had thus far been set out, the author may understandably be forgiven. However, these are quibbles. The stories are thoughtfully told with a light humour that makes them interesting both for surfers and non-surfers alike. The broken leg and the months of contemplation add the necessary grit to the oyster to take it beyond merely a good travelogue and to inspiring thoughts as to what it is about this sport which touches our souls. It was a real pleasure to read and a welcome addition to an area with very few well written books.

Friday, December 22, 2006

The ethical lawyer

This article was the editorial for the Personal Injury Brief Update Law Journal in December 2006. You can listen to it as a podcast by clicking here.

With the new year upon us, we not only take stock of the work we have been doing but also make our plans for the future. As personal injury lawyers, part of those plans will no doubt include reviewing our sources of work and perhaps promising ourselves to make more of an effort to expand this yet further. However, the start of the year is also a good time to take stick of our position as lawyers, and personal injury lawyers in particular, in society as a whole. Whether one is working for claimants or for insurance companies it is hardly in dispute that such lawyers are not held in terribly high esteem by every sector of society. Certainly, satisfied clients and former clients will extol the virtues of those that have helped them. However, beyond that both sides of the industry to some extend are caricatured unkindly both in the media and more widely by the public. Claimant lawyers are often said to be fuelling the so-called compensation culture whilst insurance lawyers may find themselves criticised for being overly aggressive and fighting against perfectly worthy claims.

Whilst both sides within the industry know the caricature is not an accurate one, the truth is that it sticks. Indeed, it is hardly dissimilar to the more general negative view that many people hold of lawyers in general. The question is not whether these prejudices are wrong but how they are to be dealt with. One way is to repeat arguments which have failed to convince in the past. Another might be to take a completely fresh approach and make a resolution to contribute to other areas of society outside of the law. This is no quick fix, but a few examples may help to stimulate ideas.

The first relates to charitable work and is highlighted by the efforts of employment law barrister Daniel Barnett who sends out an employment law newsletter (http://www.danielbarnett.co.uk/). He has recently encouraged his readership to make a small donation to children’s charity Dreams Come True (see www.justgiving.com/danielbarnett). We are supporting his efforts and hope also that it will inspire others along similar lines.

Another example is the contribution that we as lawyers might be able to make to reducing our impact on the environment. This will come from lots of people making small contributions. Examples might include law firms organising schemes where transport needs are shared or where they decide to go paperless for as much of their work as possible. It might be that firms decide to change to a green electricity provider or simply change their systems in order to minimise energy usage. Other examples might be more imaginative, such as the use of green businesses like online CPD provider CPD Webinars (http://www.cpdwebinars.com/). Whatever it is, it would provide another example of lawyers having a positive impact on society and our environment and may also have the added effect bonus of potentially even at least slightly changing people’s perceptions of lawyers as a whole.

Thursday, December 21, 2006

Trial by media

Recent press coverage of the Ipswich muder case gives real cause for concern. Given the amount of material which has been published about each of the two men arrested, it would seem near impossible that any potential trial would not be prejudiced. Newspapers may answer that much of the material may be already available on internet sites and blogs. However, this is no reason to turn a blind eye to the consequences of their own actions.

Another aspect of these cases is that the Contempt of Court Act 1981 which applies here is policed by the Attorney General. At the very least one has to question why he has not yet intervened in the face of what looks like almost blatant breaches of the Act. Without any explanation, it will leave others to conclude that there be other factors at play such as the fact that he is already under pressure for having dropped an investigation into fraud allegations against the Saudis and that he will be under even closer scrutiny when it comes to making a decision on whether prosecutions should be pursued in the cash for honours cases.

As well damaging any potential defendant's right to a fair trial, this coverage will also have destroyed the life of a potentially innocent man. If neither or both of these men were actually involved, then at least one innocent man will have wrongly been found guilty in the court of media innuendo and that of public opinion which follows in its wake. If trial by media continues to undermine due process, defendants may be well advised to turn to PR advisers rather than lawyers for the best advice.

Tuesday, December 12, 2006

Life at the Bar: Chambers (part 1)

In John Mortimer’s Rumpole of the Bailey, Guthrie Featherstone states that, “The glory of the advocate is to be opinionated, brash, fearless, partisan, hectoring, rude, cunning and unfair.” This begs the question as to how it is possible that the Chambers system manages to bring together collections of such self-employed individuals and gets them to work together.

The answer may well be represented by the pink ribbon which ties up their briefs. Over the centuries, barristers’ roles have become defined as providing advocacy in court and specialist advice outside. Like any referral profession, they are generally only brought into the frame when there is a problem to solve. The papers arrive tied in pink ribbon (or white-coloured if it’s government work). The correspondence, the documents and the witness statements have all been prepared. Counsel is then asked either to review the papers and provide his advice or alternatively to argue the case in court. When all this is done, the brief is re-tied and returned.

What the ribbon symbolises is the ability of a barrister emotionally to detach himself from any particular case or argument. One day he may be prosecuting a case. The next day, he may be defending something very similar. In neither has he invested any emotional capital over and above that associated with the task at hand. Instead, he is instructed specifically because of his independence and objectivity. With the problem solved, the papers go back. This can also be seen in the ability of members of the same Chambers to be up against each other in court without any risk of conflict of interest or prejudice to either side.

It may well be argued that this ability to detach and compartmentalise strays into other areas of life. Indeed, even the location of those chambers in the Inns of Court is physically detached from the rest of the world. It would certainly help to explain why people who on the face of it are overtly in competition with each other as self-employed specialists in particular areas can come together and not only co-operate but positively share their resources. The other reason undoubtedly is due to the rich cultural heritage of the Bar which has been passed down the generations. For every pupil and new tenant building up a practice and paying little if any rent, there is a senior barrister in effect subsidising them and well aware that he is re-paying the investment made in him by generations now passed. The result is an ethos based upon the sharing of resources, seen most clearly in the Chambers system but also prevalent between members of the bar in general.

This is not to say that Chambers don’t have their problems and the irony is that with the increasing commercialisation and financial success of the bar these have in many ways increased. The biggest difficulty is perhaps stopping people from moving elsewhere. Whilst some Chambers’ constitutions have almost punitive provisions in terms of rent claw backs for those who leave, it hasn’t stopped an increasing number from moving Chambers, something which was almost unheard of thirty years ago. Another problem arises out of this issue and it concerns getting rid of those who become unwelcome. This is rarely if ever done by a vote of chambers but instead by a quiet word from the head of chambers or even perhaps the clerks failing to recommend that person for work. Another issue which can arise concerns the liabilities of the members of Chambers if it collapses. Generally, these will be distributed between its members and this could potentially act as a disincentive to some Chambers taking on too large a financial commitment into the future without knowing what it holds.

Overall, though, life at the Bar remains a very good one and despite the many challenges it has faced, it continues to prosper.

This is the second in a series of articles on Life at the Bar. The others can be found at:

Sunday, December 10, 2006

Hate Laws Under Scrutiny

This article was published as the lead comment piece in the New Law Journal on 8 December 2006.

The recent conviction of Danish embassy protestor Mizanur Rahman followed by the acquittal of BNP leader Nick Griffin and his associate have raised important questions as to the effectiveness of the race hate laws in this country and led to politicians such as Gordon Brown to call for a review of current legislation. The problem is not a new one and reflects the inherent tension between the conflicting rights of freedom of speech and freedom from acts of violence and hostility. Chomsky neatly summarised the difficulty when he said, “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” The real problem that these cases raise is whether the laws as they currently stand are working for or against those they were designed to protect.

The issue finds its roots in the common law crime of sedition and as long ago as 1732 a newspaper was found guilty of this having published scurrilous allegations against Portugese Jewish immigrants resulting in violence against Jews. The article was found “to raise tumults and disorders among the people, and inflame them with a spirit of universal barbarity against a whole body of men, as if guilty of crimes scarce practicable, and totally incredible”. The current law was originally inspired by the calls for stronger legislation which followed the acquittal of a newspaper owner James Caunt in 1947 over his publication of an anti-Semitic editorial on the basis that the article was not intended to promote violence.

That case highlighted one of the major problems with the race hate laws which is that the successful cases often appear to be disproportionately against those they were ostensibly designed to protect. For example, the first person to be charged under the Race Relations Act in 1967 was Michael Abdul Malik (Michael X), the leader of the Black Power movement, for stirring up racial hatred against white people. In that same year, four members of the Universal Coloured People's Association were also successfully prosecuted. This presented a stark contrast to the acquittal the following year of four members of the Racial Preservation Society after they claimed that they were not intending to stir up racial hatred, but were educating the people about the problems of coloured immigration and attacking politicians for their inaction. The acquittal was despite the fact that in the course of the trial they espoused theories on the purity of races, genetic inequality of the races and the impact of immigration upon the crime rate.

Another problem with these cases is the catch 22 situation in which prosecutors find themselves. A successful prosecution potentially allows a bigot to claim to be a martyr of the civil liberties movement. On the other hand, a finding of innocence results in the accused claiming that the court had in some way given respectability and legitimacy to their views. Indeed, those acquitted in 1968 even reprinted a 'Souvenir edition' of the offending article.

The legal difficulties of the 1960s provide a powerful analogy with the two cases which have been decided this month. What the BNP case highlights in particular is the need to take account of such factors before making a decision to proceed with a prosecution. In particular, prosecutors should be extremely careful in ensuring the strength of the case before giving it the oxygen of publicity. Many may well point out that the failure to secure a prosecution the first time around should have sounded a warning bell that there might be difficulties ahead.

The government’s reaction to this was encapsulated by Mr Brown suggesting that the race hate laws need to be reviewed. Perhaps Mr Brown had been pre-occupied with the effects of the interest rate rise at the time. Whatever the reason, he appears to have overlooked the fact that the government did just this when they passed the Racial and Religious Hatred Act in February of this year and introduced new provisions to cover the stirring up of religious hatred. What is inexplicable is why the government has not yet brought this into effect. Indeed, though next February has been hinted at in the press, not even this has been confirmed.However, even when the new law comes in, it is to be hoped that the lessons of the past are borne in mind. In particular, it should not be forgotten that a major justification for the new provisions was the ending of the loophole that had left Muslims as a group unprotected by the race hate laws since, unlike Jews and Sikhs, their community did not have any racial foundations. Whilst one would not want to discourage the authorities from invoking the incitement laws for those preaching violence, it is to be hoped that the authorities are sensitive enough not to end up using the new law religious hatred laws against the very community it was designed to protect.

Friday, December 8, 2006

Corfu case exposes fatal flaws

This article was the front page article for the Solicitor's Journal on 8 December 2006. You can also listen to a similar version of it as a podcast here.

The tragic deaths of the two children Christianne and Robert Shepherd in their holiday bungalow at the Louis Corcyra Beach Hotel in Corfu has raised much comment on the potential liabilities of the hotel and the tour operator. In particular, it has been said that manslaughter charges are being considered against the hotel by the Greek authorities. Others have pointed to the operation of the Package Holiday Regulations in relation to tour operators. However, there are wider issues which the debate has not yet touched.

The first concerns whether the Corporate Manslaughter Bill currently going through Parliament should ensure that the new offence of corporate manslaughter covers British companies who cause deaths abroad. Although individual British nationals can be prosecuted for manslaughter committed abroad, in its current form the Bill leaves a serious loophole in respect of companies in that it only covers those deaths which occur in this country. This is despite the fact that it is quite possible in the case of companies that many of the actions that lead to a death may take place in this country. For example, whilst there is no suggestion of this in the present case, the question arises as to what would happen if it became clear in such a situation that the management in a British tour operator in fact knew that a particular hotel was having problems with carbon monoxide leaks but turned a blind eye in the interests of maintaining their profits. Or what if there was a repeat of the 1984 Bhopal disaster, in which a Union Carbide plant in central India leaked 40 tons of toxic gas and killed more than 3,000 people, but with a British company responsible and the deaths being its British workers? Add to this the fact that it is perfectly possible for inquests to be held in this country in relation to deaths abroad and further that such a hearing could well reveal serious management failures having been made on domestic soil. It seems unlikely that in circumstances such as these, there would not be many who may then regret that the Bill’s jurisdiction had not been wider. Perhaps this case may at least prompt the government into amending the Bill before it enters the statute books.

The other issue which these tragic deaths highlights is the level of damages which are awarded in many fatal accident cases. Even without commenting on the merits of this specific case, if a tour operator were found liable for the deaths of two small children the most likely award would be for £10,000 “bereavement damages” per child and a few funeral expenses. Compare this to the millions of pounds which are often awarded in personal injury claims where the victim has lived and there are claims for continuing loss of earnings and any cost of care. This highlights the little known anomaly that in English law it is often cheaper in terms of civil liability to kill someone than it is to maim them.

The reason for this is the so-called compensatory principle which only allows claims for actual financial loss and takes no account of the wider circumstances of the case. So, if a young City banker on half a million pounds a year and with no dependants is injured and therefore unable to work for the rest of his life, he could claim for his lifetime’s loss of earnings and potentially the cost of any care he might need. However, he clearly doesn’t have any such losses if he’s dead. In order to remedy this injustice, it might be argued that perhaps there should be some sort of punitive element built into awards for fatal accidents. Such an approach is all he more so in the case of companies. So, too, for infant deaths where dependency claims are unlikely.

There would be many ways of implanting a system of punitive or exemplary damages. For example, there might be a claim by the estate for the present value of an average lifetime’s loss of earnings for the deceased although questions might then be raised as to why a rich man’s death should be worth more. If not, it might be a standard tariff. In effect this is what the bereavement element of the damages is at the moment and the objection is not to the principle but to its current derisory and potentially insulting level. Alternatively, it could be a jury award which is left to the discretion of the judge taking account of the seriousness of the wrong and the wealth of the wrongdoer. Not only would this facilitate more specific justice it would also give the court the ability to hit companies, in particular, where it hurts. However it’s done, it’s time that this anomaly is rectified.

Tuesday, December 5, 2006

Tainted by fraud arguments

This article appeared in the the Personal Injury Brief Update Law Journal in December 2006.

Introduction
It seems to many odd that a party to a contract might have the whole of a claim under that contract dismissed for breach of a term of the contract; often a misrepresentation about the risk to underwriters at the proposal of the policy, or falsification or exaggeration within the process of a claim itself, even if the claim is essentially ‘genuine’. This position, which comes from the operation of the doctrine of utmost good faith contrasts with the general position of claims in tort which on the whole result in a Claimant being compensated for that part of his claim which is genuine even if he has exaggerated or even made up another part of it. It is correct to say that in a claim against a tortfeasor there is no contract and no such duty of utmost good faith. The injured party owes no relevant duty of care to the tortfeasor; the injured party’s claim will thus be governed by the rules of court. For the most part, the penalty tends only to be in costs, if at all. This general position is now being challenged in a growing number of cases.

Tainted by fraud
Defendants may try and resurrect the old Privy Council authority of Hip Foong Hong v H Neotia and Company [1918] AC 889 in which Lord Buckmaster comments on the issue of tainting in the following way:
A Judgment that is tainted and effected by fraudulent conduct is tainted throughout and the whole must fail …

However, that case dealt with the opium trade and was an appeal from a decision in the Shanghai Supreme Court and is arguments along these lines is probably unlikely to find favour at first instance in English law by itself.

Defendants may also try to draw an analogy not only with the insurance line of cases but also with cases in which the courts as a matter of public policy have refused to enforce contracts tainted by illegality (e.g. an illegal purpose). An example is that of Birkett v Acorn Business Machines Ltd [1999] 2 All ER (Comm) 429 in which the Court of Appeal held that the court would not assist the enforcement of a contract tainted by illegality, even where illegality was not pleaded by either of the parties.

Abuse of process
Another potential argument is that the claim should be struck out under CPR 3.4(2)(b) on the basis that arguing that the statement of case is an abuse of process and also limb (c) referring back to CPR 1.1 (the overriding objective) and 1.3, which requires the parties to help the Court to further the overriding objective. In support, a Defendant may also cite Arrow Nominees Inc v Blackledge [2000] 2 BCLC 709 and advance two arguments:
a. It is impossible to have a fair trial of the issues and/or;
b. The Claimant’s conduct amounts to an abuse of the Court’s process; paragraphs 54 & 55 of Arrow Nominees state:
... the object of the Rules is to secure the fair Trial of the accident in accordance with the due process of the Court and that accordingly a party is not to be deprived of its rights to a proper Trial as a penalty for disobedience of those Rules, even if such disobedience amounts to contempt for or defiance of the Court……….. But, where a litigants’ conduct puts the fairness of the Trial in jeopardy where it is such that any Judgment in favour of the litigant would have to be regarded as unsafe, or amounts to such abuse of the process of this Court as to render further Proceedings unsatisfactory, and to prevent the Court from doing justice, the Court is entitled, indeed I would hold bound, to refuse that litigant to take part in the Proceedings and (where appropriate), to determine the Proceedings against him.

The Court may consider, in such cases, two issues in particular:
a. To what extent a Claimant has failed to help the Court to further the overriding objective; and
b. Whether to exercise the discretion to strike out statements of case under CPR 3.4.

Claimants may argue that the appropriate penalty (if any at all) is in costs if the Court accepts that part of the claim is false or exaggerated - see Painting v University of Oxford [2005] EWCA Civ.161 also Molloy v Shell UK Limited [2000] PIQR 56. The Defendants may argue that this might encourage people to use the Court’s process to ‘try it on’ and then still to succeed in part of a claim even if another part of it is presented fraudulently; as Ward LJ put it in Arrow Nominees:

… the attempted perversion of justice is the very antithesis of the parties coming before the Court on an equal footing

An interesting comment from the Court of Appeal on this issue was made by Laws LJ in the case of Molloy v Shell UK Ltd [2001] EWCA Civ 1272 in the Court held that in a claim for damages for personal injury arising out of an accident at work, where a Claimant had deceived the court by exaggerating the extent of those injuries, the judge's discretion had to be exercised so as to award the Defendant its costs in full. However, Laws LJ went further when he stated:

For my part I entertain considerable qualms as to whether, faced with manipulation of the civil justice system on so grand a scale, the court should, once it knows the facts entertain the case at all save to make the dishonest Claimant pay the Defendant’s costs.

The Claimant's position
The Claimant will argue that a conduct point should not influence the Court’s decision in the award of damages and that an overstatement or fabrication of a small part of an otherwise genuine claim, should only result in that part being struck out. The result of the strike out may be that the Defendant succeeds on that issue in costs, though not necessarily. Indeed a Claimant may be entirely innocent in the fraud and in those circumstances his argument becomes even stronger. Further, there may be human rights arguments such as the right to a fair trial if the tainted with fraud argument were to succeed. There may also be more imaginative arguments which may develop. A good example of litigation in which imaginative human rights arguments went all the way to the House of Lords is that of Wilson v Secretary of State for Trade & Industry [2003] 3 WLR 568.

Credibility
Ultimately, this whole issue may boil down to one of the Claimant’s credibility. If one part of a claim is fraudulent, it is likely to affect the credibility of the rest of the Claimant’s claim. Faced with a fraudulent part of a claim the courts can either dismiss just that part or they can knock down the rest of the claim. The easiest way is through finding that the Claimant’s credibility was so affected that the rest of his claim was not believable. Alternatively, a court may decide to strike out the claim as an abuse of the process of the court. Beyond this, it remains to be seen whether the courts decide to extend the effect of tainting further, by analogy either with insurance contracts, illegal contracts or old Privy Council authority.