Thursday, March 29, 2007

Da Vinci Code

The Court of Appeal this week rejected Michael Baigent and Richard Leigh's appeal against their first instance defeat in a claim against Dan Brown. Their central allegation was that large passages of the Da Vinci Code were copied from their earlier work the Holy Blood and the Holy Grail.

The case is interesting because it asks the question just how far does the protection of copyright extend? Undoubtedly there are similarities between the two books. When does drawing inspiration from an earlier work become copying it? There are only a limited number of plots anyway (some say only seven) so it is rare to come across a genuinely original novel.

Do both books fall foul of the ancient laws of blasphemy still in force in England and Wales?

The Da Vinci Code (and to some extent Angels and Demons also by Dan Brown) also raises difficult questions about the dividing line between fact and fiction. There is something uncomfortable about fictionalising the lives of real historical people, especially when that fiction is presented as though it is the truth.
I hope to write more about the Court of Appeal decision next week, once i've had the chance to digest it!

Tuesday, March 27, 2007

Weekly review


The graying bar and professional ethics
Described as “the most important and well-researched blog post of 2007”, David Giacalone provides an excellent article about the graying of the bar and the ethical implications of aging lawyers, judges, and law firms. f/k/a.

BabyBarista: considers hiring a “professional” for TopFirst
BabyB continues to amuse us. This week he considers hiring a “professional” to seduce TopFirst and is mortified when his mother arrives in Chambers bearing a freshly-baked cake. BabyBarista.

Keeping ex-staff stum
Article on restrictive covenants and former employees. Impact.

Diversity at the Bar
Interesting article about diversity and the experience of mature students. Lawyers-2-Be.


The price of dispensing justice
A 24-hour counselling helpline is being set up to help judges to deal with the emotional problems and stresses of the job. The Times.

Lords delay no-jury fraud trails
The Law Society has welcomed the decision by the House of Lords to postpone controversial Government plans to abolish juries in complex fraud trials. Legal Week.

Footballer awarded £1.5million for unnecessary knee surgery
Ex-West Brom and Man Utd player Michael Appleton won £1.5 million for an unnecessary knee surgery. Baggies World.

Lawyers protest over legal aid reforms
Hundreds of Lawyers demonstrated outside Parliament against reforms to the legal aid system. BBC.

Football Agents acted for both players and club
Interesting finding an otherwise extremely dry VAT case. Solicitors Journal.


Using the Chewbacca Defence
Psychiatrist accuses Patricia Hewitt of using the famous and unbeatable South Park Chewbacca Defence and gives us a clip. Very funny. The Psychiatrist Blog.

Judge jails stenographer
A judge in Florida has jailed his own stenographer after she failed to complete a piece of work quickly enough. Roll on Friday.

Boston Legal
Denny Crane, trained sniper. YouTube.

A giant cane toad the size of a small dog and nicknamed Toadzilla has been captured in northern Australia. BBC.

Thursday, March 22, 2007

Telephone Hearings

The latest civil procedure fad is to make as many application hearings as possible take place by telephone. I had a telephone hearing earlier this week with a very pleasant District Judge in a far away County Court. The line was very crackly, and I fondly imagined that the Judge was using a phone of a similar vintage to the one pictured here.

Seriously though telephone hearings create the following problems:-

1. You cannot see the Judge's expression. This means you never quite know whether you have said enough to convince him / her or whether you are about to get shouted at.

2. It's rarely clear whose turn it is to speak. Uncomfortable silences abound.

3. Often the parties and the court have quite different documents in front of them. If both sides have sent draft directions to the court, it can be unclear which set the Judge is working from.

4. There is the terrible temptation to take telephone hearings on a mobile phone, preferably from home but possibly from more exotic locations.

Wednesday, March 21, 2007

Diagnosing Subtle Brain Injuries

The recent personal injury case of van Wees v (1) Karkour (2) Walsh, contains some interesting discussion of the medicine behind claims for subtle brain injuries. The issue arose as follows: the Claimant argued that her injury consisted of organic brain damage therefore it was likely to be permanent (leading to a claim for ongoing losses). The Defendant argued either that she was consciously exaggerating her symptoms or that her continuing injury was down to psychological factors from which she was likely to recover.

A particularly interesting feature of the case was that the Claimant was and remained highly intelligent. The effect of the accident (if anything) was that it had taken her edge off. She was more easily fatigued and found it harder to concentrate. The case stands as testament to the fact that a minor brain injury that reduces a Claimant’s intellectual capacity slightly can found a substantial claim in damages.

The key diagnostic indicator in subtle brain injury cases is Post Traumatic Amnesia (PTA). In van Wees the Judge carefully defined PTA. The crucial point is that it is not a total lack of memory. Rather, it is characterised by “islands of memory, punctuating periods of loss of memory”. It begins at the accident and lasts until the return of normal complete memory.

Medical experts use the duration of PTA as a guide to the severity of a head injury: PTA of less than one hour indicates mild head injury; PTA of less than one day equals moderate head injury; more than one day indicates severe head injury and more than one week being very severe. The categorisation is important because only a severe head injury is likely to lead to ongoing symptoms. The Judge accepted these guidelines as the product of medical experience. However, he described them as “an estimation (no more than that)”. Thus they were regarded as a relevant factor in assessing the severity of injury, but not conclusive.

The only way of assessing PTA is by medical experts taking a history from the Claimant. It is particularly important to distinguish genuine recall from reconstruction (things the Claimant knows happened because others have told them). The Claimant emphasised that the history needed to be taken carefully and sensitively. The Judge held that there is no magic in the process of obtaining a PTA history. Indeed he refused to criticise the Defendant’s expert for only taking ten minutes over it.

The Judge found that the Claimant had suffered post traumatic amnesia for around 24 hours. He reached this conclusion by scrutinising the Claimant’s various accounts of the accident. She consistently said that she had no recollection of the accident. She remembered: vomiting in the ambulance; being moved around the hospital on a trolley; being checked upon once in hospital and flagging down a taxi outside hospital (but not her actual discharge). This suggested she was still suffering PTA at the time of her discharge from hospital. Accordingly, the Judge found that the Claimant had suffered an injury of moderate severity which caused ongoing brain damage.

Sunday, March 18, 2007

Weekly review


BabyBarista: pregnant BusyBody, “UpTights” and a HoneyTrap
Although we did not intend to give BabyB lead billing once again, he is getting even better. This week he introduces us to his new pupil mistress “UpTights”, sets a HoneyTrap for TopFirst, oh, and BusyBody thinks she may be pregnant but doesn’t know if it’s by a barrister or a clerk. BabyBarista.

Are podcasts the future of blogging?
Justin Patten examines some recent legal podcasts by Charon QC and looks to the future. Human Law.

Key to small business success
To be the sharpest knife in the drawer apparently. Escape from Cubicle Nation.

Don’t mess with doctors!
See the doctors march against government reforms. The Psychiatrist Blog.


Legal “Big Bang” delayed until 2010
The Legal Services Bill is unlikely to come into force before 2010 in a move that will raise questions over the future of these reforms.Legal Week.

Tesco jails planned
Short-term “jails” are planned for supermarkets to deal with shoplifters under Home Office proposals. The Times.

Battle rages over in-house practising certificates
The government has rejected a Solicitors Regulation Authority-inspired attempt to require in-house solicitors providing ‘any legal services’ to hold practising certificates. Law Gazette.

Woman wins ‘record’ £8.5million damages
A woman received £8.5 million damages in what is thought to be one of the highest ever injury compensation awards. Telegraph.

Advertising guru sues over blog content
A senior advertising executive is suing for what was claimed to be a "vicious" email and internet blog campaign against him. Independent.

Top ten US jury verdicts for 2006
Enough to make any Claimant solicitor envious and any insurer shudder. LawyersUSA.


More from Boston Legal
James Spader in another great clip. YouTube.

Asda prank call
With thanks to Charon QC for telling us about this one. YouTube.

George Galloway losing his temper
In a recent debate with Daniel Finkelstein of The Times on Sky here and with Jeremy Paxman on the BBC in 2005 here.

Why Lawyers Should Surf
Read some passages from motivational book ‘Why Lawyers Should Surf’ by Barrister Tim Kevan and psychiatrist Dr Michelle Tempest. Here

.…and why they shouldn’t
How a shark attacked a surfing prosecutor. f/k/a.

Saturday, March 17, 2007

Don't mess with doctors!

Doctors are not exactly known for their political activism but today they were out in force showing that finally even this government has gone too far. This video which appears on The Psychiatrist Blog shows an experienced consultant suggesting a novel way of filling out the controversial application forms. You can also see a piece by Dr Michelle Tempest who writes the psychiatrist blog below.


I see that The Independent today has an article railing against the launch of a service by BA to Newquay on Tuesday. In her opinion piece, Greenpeace's Emily Armistead adds further to that article and coins the phrase "binge-flying". This is a very difficult issue, particularly for surfers. Most would probably claim to care very much about the environment and may be active in causes such as Surfers Against Sewage. However, does that then make us hypocrites when we step on a flight to a remote surfing destination? I don't know the solution, but this is a debate worth having both in public and with ourselves.

Wednesday, March 14, 2007

Blue Peter phone fake!

The honour and mystique of being a Blue Peter badge holder was sadly tarnished today by the story that the BBC children's show had to apologise to viewers after faking the result of a phone-in competition. I note that after all their own difficulties in this depertment, Channel Five have been quick to glat about the BBC's squeaky clean show (here).

A legal dispute which is currently doing the rounds is whether damages for the tort of deceit should fetch punitive damages, in other words damages over and above the actual loss. Whilst it is not to say that any of these shows have been guilty of deceit, it will be interesting to see whether some enterprising no-win no-fee solicitor decides to start up a group action on behalf of people who have perhaps spent a few hundred pounds on the variouis quiz and other shows in question.

Lawyers: be careful before you go into the sea

Following our recommendation that "Lawyers Should Surf", David Giacalone at f/k/a has followed this up with a bit if a health warning, pointing to a recent story of a Palm Beach County prosecutor who was attacked by a shark whilst surfing. Thankfully, he survived.

Reminds me of the debate last year as to whether there are any great white sharks off the UK coast. This is reported on the BBC website.

Thanks also to LawerLike for first pointing out this story.

Tuesday, March 13, 2007

Alternative Court Guide

Most lawyers will be familiar with the court guide, which tells us how to traverse the difficult yards between station and court in any farflung town. The problem is that we often need to know more than these simple directions: I particularly like to know where to get a good coffee in the morning before the start of case and where to go in the afternoon if a case finishes early.

Last week I spent a glorious day in Southend. I had a two hour gap between my morning and afternoon cases, so I can offer the following hints:-

1. The best coffee in Southend is found at O'Brians under the railway bridge.

2. On a sunny day the walk along the pier (a bargain at 50p) is delightful. It claims to be the longest pleasure pier in the world. At over a mile and a half long, it's a great way to forget about stressful cases and simply enjoy being beside the sea.

Monday, March 12, 2007

Hardship of new equality law

The front page of The Times today reports an extraordinary story, that hundreds of thousands of men working in the the public sector are facing salary cuts of up to £15,000 a year as equal pay agreements take effect. Apparently, compensation claims for up to 1.5 million workers could cost the taxpayer more than £10 billion and mean that male staff lose up to 40 per cent of their salary. The Times reports that up to 700,000 female council workers, a similar number of NHS workers and tens of thousands of teaching assistants and Ministry of Defence staff are now eligible for equal pay settlements stretching back over six years. The article continues:

"Over the past two years, unions have reached hundreds of compromise agreements with local councils to help to protect male workers’ pay and jobs while getting a good deal for women...The unions claim that no-win, no-fee solicitors are now undermining industrial relations in the public sector as lawyers try to renegotiate settlements. Union officials across the public sector are now having to agree to settlements where men’s pay will be cut."

Whilst there may sometimes be a case for attacking "no-win no-fee" lawyers, it is more than a little rich here when all they are doing is applying the law. This is a classic example of well-intentioned socialist legislation leading to unintended consequences. Equal pay seems uncontroversial. But suddenly to impose drastic changes from the top down is leading to severe and punitive pay cuts to men with all the social consequences that follow. Perhaps it is that the unions would rather raise a red herring of compensation-chasing lawyers criticise the effects of this socialist legislation.

Sunday, March 11, 2007

Weekly review


BabyBarista: Reports on a corrupt medical expert
BabyB continues as our favourite legal blog as his controversial (and hilarious) posts continue to be forwarded around firms. This last week, he tells us about Dr4Hire who’ll say just what you want him to say and also Creep, a jumped up barrister in his chambers. BabyBarista.

How to charge more and attract better clients
Article suggesting that by competing on price you may be conveying a number of messages that may hurt you in the end. Legal Marketing Blog.

Pupillage application advice
A barrister offers some tips for applying for pupillage. Legal Beagle.

Be careful what you post
Discussion about how on and off the record conversations translate online. Volokh Conspiracy.

Psychiatrist highlights NHS crisisJunior doctors have been getting sacked en masse in a way that just confuses the public. Here, a psychiatrist explains all. The Psychiatrist Blog.


Driver sends bailiffs into Tesco to win bad fuel fight
A man who took on Tesco for damage done to his van by contaminated fuel obtained an order to impound £60,000 of their wines and spirits until it had cleared its debt. Times.

QC system in doubt after application shortfall
The new QC appointments system is facing an uncertain future after it was confirmed that applications have fallen by more than 100 from last year’s figure. Legal Week.

Solicitors issuing RTA cases ‘to avoid fixed fees’
Research reveals 37% increase in the issue of proceedings in low-value road traffic accident cases so as to avoid the fixed-fee payment scheme. Law Gazette.

Union wins BNP expulsion ruling
The European Court of Human Rights has upheld a union's decision to expel a British National Party activist. BBC.

Dangerous burglars cannot be named
Police have warned householders to watch out for three convicted burglars, but cannot issue descriptions of the men for fear of breaching their human rights. Telegraph.

France bans citizen journalists reporting violence
To the extent that the video which exposed the Rodney King racist beatings 16 years ago would be illegal. InfoWorld.


Why Lawyers Should Surf
Barrister Tim Kevan and psychiatrist Dr Michelle Tempest launch a motivational book for lawyers using surfing as a metaphor. Pre-order for £9.99 from Amazon.

White rabbit at law firm
Take a look at Goodman Harvey’s website. Click on Harvey’s profile and you will find a picture of a white rabbit who has been "burrowing his way into the Manchester property scene" since 2004. Roll on Friday.

Children’s sack race cancelled due to legal risks
A children's sack race has been scrapped from a community-run sports day because of the cost of insuring competitors against injury. Telegraph.

Fantasy life, real law
Lawyers are joining the virtual community Second Life, creating new laws, serving as judges, marketing to clients and even meeting legal celebrities. ABA Journal.

Brain teaser
Try and work out whether there are 12 or 13 people as the group changes position. The Lady Justitia.

Thursday, March 8, 2007

Riding the Magic Carpet, Drift Magazine

The following was published in issue 2 of Drift Magazine in February 2007

Book review of 'Riding the Magic Carpet’by Tom Anderson (Summersdale Publishing)

When Tom Curren first rode the right hand point break at Jeffrey’s Bay in South Africa, the world watched in awe. For the author it symbolised everything that was going on at the time. The ending of tyranny, the ride to freedom, the opening up of a new world. From that moment on, the image of that wave entered Tom Anderson’s mind and transformed itself in his imagination. Not only did it represent events half way across the world. It started to symbolise the ending of the petty tyrannies which he faced each day at his local school in South Wales.

As the years went by, the yearning to experience the wave for real took on greater significance until it became something of an obession. Every surf trip was undertaken with a justification at least in the back of his mind that it would take him one step closer to being able to paddle out at J-Bay. To some extent, it became a symbol of the author’s ambition, an end in itself. Ahab and his whale.

His travels took him from the beach breaks of France to the Orkneys and Thurso East and eventually further afield to Sri Lanka and Uluwatu. As is the case with all epic adventures, the hero accidentally stumbled upon self-enlightenment triggered most poigntantly through suffering. First it comes at the culmination of a number of frustrating trips to Mundaka where the wave just refuses to awaken. Then when finally it rises from its slumber the author’s board breaks. Worse still he later breaks his leg and has to endure a surf trip taking in Pavones in Costa Rica without even being able to paddle out. Perhaps it was a fear of being unable to surf. Or perhaps it was a deeper fear that if he couldn’t surf, he couldn’t pursue his ambition which had all been tied into J-Bay over the years.

As he went through the frustration of having to watch his girlfriend enjoy the waves, he slowly started to let go of his own ambition and appreciate the value of teaching, passing on. It is described almost as an epiphany and with it the cloud of ambition appeared slowly to lift. As it did, he reflected on his father’s generation and their own lack of selfishness: “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.”

Perhaps it was because he had actually let go of his ambition for its own sake, of his need for J-Bay, that he was eventually rewarded with the waves of which he had dreamed. Perhaps he would have made it anyway. Either way, it is this journey of enlightenment which takes the book from a very readable and entertaining travel book to something deeper. Yet if it is allegorical, it is with a touch light enough to carry it. No need for horror or a Mr Kurz in the jungle here. It’s from the simplicity of the everyday coupled with classic surf adventure that it derives its power. Definitely up there with the best in surf travel literature.

Wednesday, March 7, 2007

Interview on Charon QC

This afternoon I had the pleasure of being interviewed by Charon QC. I think it's only a matter of time before Charon has his own radio show. You can find his post here and you can listen to the podcast by clicking here.

Tuesday, March 6, 2007

Russian Politics

Last week saw what the New York Times described as an "unusually large and unruly" protest against the Russian Government. Some 5,000 people took to the streets of St Petersburg, despite the organisers only expecting 2,000.

One of the organisers of the protest, was the former world chess champion Garry Kasparov. Kasparov was known in the chess world for his energy and his detailed preparation. Many believe that he is the greatest player of all time. His chess success has brought Kasparov the money and the celebrity status in Russia to mount a credible political challenge. Rumours abound that he is planning to stand for Russian President in next year's election.

Sunday, March 4, 2007

Weekly review


BabyBarista: how to get back to chambers before lunch
It seems it’s not just us who are enjoying BabyB’s adventures in pupillage. The Lawyer Magazine just described it as “genius”. This last week, he gets sent to jail for an hour and learns how to get out of a case and back to chambers before lunch. BabyBarista.

Is Google like a newspaper, cablenetowrk or phonebook?
Interesting article on the nature of Google’s business and a recent challenge over their listings. Concurring Opinions.

Another setback for Amazon 1-click
Amazon have suffered another setback in their struggle to get a European patent granted for their ‘one-click’ internet shopping invention. IPKat.

Charon QC podcast
Charon QC interviews Justin Patten of the HumanLaw blog. Charon QC.


The luxurious life of judges
Palatial judicial lodgings are costing the taxpayer £5m a year despite an economy drive that recommended judges give up their butlers and luxury cars. Independent.

Defective petrol: your legal rights and compensation
Motorists whose cars have been damaged as a result of defective petrol have a very clear legal right to compensation – as long as they can prove who was at fault. The Times.

No compensation for maypole hole claimant
Higher than reasonable standard of care would spell the end of English village green activities, rules Court of Appeal as it overturned an award for a broken leg caused by a hole left by a maypole. Solicitors Journal.

P Diddy breaks ruling over name
US rapper P Diddy has been found in breach of an agreement not to use his "Diddy" alias in the UK - with the matter now going to a full trial. BBC

BBC gagged over cash for honours
Attorney General obtained an injunction to stop the BBC broadcasting an item on the cash for honours investigation. Nick Robinson’s blog.

China to pass first private property law
The Chinese parliament is expected to pass China's first law to protect property rights after a contentious, year-long debate. FT.


Psychiatrist reveals how to spot liars
It’s not as easy to spot a liar as you may think, but there are tell-tale signs. The Psychiatrist Blog.

Surfing mice
The world’s first surfing mice. Honestly! YouTube.

Horace’s Odes and The Mystery of Do-Re-Mi
An excellent investigation through the classics by Stuart Lyons CBE reveals that it was Horace and not Rogers and Hammerstein that invented this tune. Buy the book and accompanying CD.

The 23-year stomach ache
A Brazilian woman is taking legal action against a hospital after it was discovered that she has a scalpel left in her body for almost 23 years. Legal and Medical.

Saturday, March 3, 2007

Changes to CPR Parts 36 and 14

The other day we gave notice of changes to CPR Parts 14 and 36 which will come into force on 6 April 2007. Here is some further information.

CPR Part 36: Payments into court and offers to settle
As from 6 April 2007 defendants will no longer be required to make payments into court to obtain the costs benefits of Part 36 provided the proposal: is in writing; specifies it is open for acceptance for at least 21 days; is called a Part 36 offer; and refers to which aspect of the claim it is made and whether it includes any counter-claim. The new Rules are different in that: the defendant no longer has to make a payment into court following service of proceedings; a Part 36 offer can be stated to be open for acceptance for more than 21 days; it cannot be withdrawn or varied prior to expiry without the court's’s permission; and it must state payment will be made within 14 days of acceptance if it is to be treated as a valid Part 36 offer.

Withdrawal of Part 36 offer
The Part 36 offer can be withdrawn after the 21-day acceptance period (or such other period as the offer is stated to be open for acceptance) in writing without recourse to the court. The automatic Part 36 cost consequences cannot be assumed with a withdrawn offer although the court may use its overriding discretion. A new Part 36 offer will not extinguish a defendant's’s previous Part 36 offer. Should circumstances change, for example the defendant obtains more favourable evidence and a reduced offer is made, the previous (higher) offer must be withdrawn in writing to avoid it remaining open for acceptance. A Part 36 offer is treated as being made when it is served on the recipient of the offer rather than when it is received.

Before making a Part 36 offer the maker of the offer must apply for a Certificate of Recoverable
Benefits and the Part 36 offer must set out the gross compensation, the name and amount of deductible benefits which will be taken from that gross sum and the net amount of compensation to the recipient of the offer following deduction of the benefits. If a CRU Certificate is awaited the maker of the offer must provide these details within 7 days of receipt of the Certificate.

Costs consequences
A major change is that the claimant will get costs benefits if at trial he matches his previous Part 36 offer, he need not beat it. In addition the revised provisions assume with such a win a claimant is entitled to interest and costs on an indemnity basis unless the court considers it would be “unjust in all the circumstances of the case” (the previous provision only said the court may order interest and indemnity costs).

Changes to CPR Part 14: Pre-Action Admissions
As from 6 April 2007 a claimant may, after commencement of proceedings, apply for judgement on a defendant's’s pre-action admission provided the admission was: in writing; made after 06.04.07 and made following receipt of a Letter of Claim, or if before, stated to be a Part 14 admission. The new provisions will prevent such a pre-action admission being withdrawn prior to service of proceedings unless the claimant agrees. Following service of proceedings a defendant will have to obtain the parties’ consent or the court's’s permission to resile from its pre-action admission.

Friday, March 2, 2007

Taking risks

This is an extract from Why Lawyers Should Surf co-authored with Dr Michelle Tempest. Further extracts can be found here.

Writers have for a long time described the extreme nature of surfing big waves. For example, Mark Twain in Roughing It, “It did not seem that a lightning express train could shoot along at a more hair-lifting speed.” Herman Melville in Mardi, “Snatching them up, it hurries them landward, volume and speed both increasing, till it races along a watery wall, like the smooth, awful verge of Niagra.” Jack London in The Cruise of the Snark, “Why, they are a mile long, these bull-mouthed monsters, and they weigh a thousand tons, and they charge in to shore faster than a man can run.” Drew Kampion in The Book of Waves described a big wave rider as “like a matador to an avalanche”.

Big waves as the forces of life itself. Sometimes bearing down, at other times careering us forward as if floating on air. Big waves directing us through life’s mysteries. Longfellow wrote, “’Wouldst thou’ – so the helmsman answered.- / ‘Learn the secret of the sea? / Only those who brave its dangers / Comprehend its mystery!’” Kampion points to Rainer Maria Rilke: “We are the bees of the invisible. / We distractedly plunder / the honey of the visible in order to / accumulate it within / the golden hive of the invisible.”

We don’t all need to be big wave riders. But they can teach us not to fear the unknown. To rise to the challenge and see the benefits of taking some risks. To feel alive. To realise that through acts of courage, facing fear, insight can flourish. In You Should Have Been Here An Hour Ago, Phil Edwards explained the need for “controlled danger” in the modern age of health and safety: “There are, as you read this, uncounted millions of people who now go through life without any sort of real, vibrant kick. The legions of the unjazzed…The answer is surfing.”