Monday, July 30, 2007

Weekly Review

Legal News

“Junk mail” postal workers lose unfair dismissal appeal case
Two Royal Mail workers who won unfair dismissal claims after a bundle of “junk mail” was found in a sorting office cupboard have now lost their cases after an appeal by their employer. CPD Webinars

MacMillan fined over consultation regulations failings in landmark case
Publishing giant Macmillan has been fined £55,000 by the Employment Appeals Tribunal (EAT) for its failure to implement Information and Consultation Regulations in the first case of its kind. Personnel Today

Ministers blasted over treatment of judiciary
Government ministers have been castigated over their “bungled” creation of the Ministry of Justice and “insensitive” treatment of judges in two separate Parliamentary reports. Times

Appeal court says surrogate mother can't keep child
A woman who agreed to carry a surrogate baby for a couple has been ordered to hand over the baby boy after she refused to give up the child. The desperate tug of love between the surrogate mother and the married father was finally decided in London's Appeal Court. This is Bristol

No sick pay for short-term agency worker
An agency worker who had entered into a contract of service for a period of less than three months was not entitled to statutory sick pay, the Court of Appeal has ruled. Times

McLaren escape punishment in spying row
The McLaren-Mercedes formula one team have avoided any punishment in the row over alleged industrial espionage against rivals Ferrari because of "insufficient evidence". In The News

Best of the Blogs

BabyBarista invites us to be his friend on FaceBook
After destroying TopFirst on FaceBook (leaving him "facebooked"), BabyB has also signed up as "BabyBarista Blog" and is asking us to be his friend. Baby Barista at the Times

Responsible renting – have your say
Your chance to respond to the Law Commissions consultation on responsible renting. Landlord Law blog

Presumed ignorant
Reports and comments on the billable hour f/k/a

How to get divorced without losing your shirt
Marriage on the rocks? Two big money divorce lawyers tell you 20 ways to make the split less painful. Times

Another slice of salami, sir?
The Magistrate has a word of caution for us. The Magistrate's Blog

And Finally...

Judge gives mobster shirt off his back
A man facing life in prison has had his sartorial blushes spared after a judge gave him a shirt and tie. Roll On Friday

Nasa astronauts 'sloshed in space'
Nasa let astronauts fly when they were drunk, an aerospace magazine has claimed. Sky

Grim reaper tabby
A cat has amazed medics - by predicting when nursing home patients are about to die. Oscar curls up next to elderly residents in the last few hours of their lives. Ananova

Binman's St George bandana 'is racist'
A black dustman has been banned from wearing a St George's Cross bandana because council officials say it could be regarded as racist. Telegraph

The countdown
100 Movies, 100 Quotes, 100 Numbers. You Tube

Thursday, July 26, 2007

Alternative Court Guide

The latest in an occasional series of titbits that don't make it into the official Court Guide...

Uxbridge County Court

This is one of the few County Courts (certainly in the South East) that is more than a mile from the nearest Tube or train station, making it quite irritating to get to and a taxi journey usually inevitable.

However, this does not necessarily have to be so. I recently discovered that the Court is a do-able 30-minute walk from Hayes & Harlington BR station (which itself is a 20-minute train ride from Paddington). The route I ended up taking was a particularly pleasant one which took me through a church yard, along a rural-looking path and across a village green. A change from the usual trek through urban sameness and certainly worth the effort (as long as you get long enough respite from the rain).

Monday, July 23, 2007

Weekly Review

Legal News

Paralysed man loses bulk of compensation claim
A Gloucester man "with everything to live for" who was paralysed from the neck down after a climbing accident has lost the bulk of his High Court compensation claim. CPD Webinars

Corporate killing law to include police and prisons as Government admits defeat
Prisons and police authorities will be liable for prosecution over deaths of people held in custody after a final defeat of the Government over the scope of new corporate manslaughter laws. Times

Japanese activist shareholder jailed for insider
most prominent shareholder activist was sentenced to two years in prison today after being found guilty of insider trading. Guardian

Sick baby must be treated, judge tells parents who put faith in God
A desperately ill seven-month-old baby may be given potentially life-saving medical treatment against the wishes of her devout parents following a High Court ruling yesterday. Times

Whiplash claim thrown out of court
A Lancashire woman has successfully defeated what she believes was a fraudulent whiplash claim for personal injury compensation. You Claim

Attorney's role 'unsustainable'
The role of the government's chief legal adviser, the attorney general, is "not sustainable" and needs reform, says an influential committee of MPs. BBC

Best of the Blogs

Re-vamp
BabyBarista is dropped by UpTights in favour of a woman in order impress a lecherous chauvinistic pig of a judge who turns out to be female. Baby Barista at the Times

A ‘must read’ for Facebook users…
Charon QC recommends some reading if you're on Facebook. Charon QC

Outfit oratory
He said it two years ago and - after overhearing a few conversations recently at a restaurant - he's going to say it again, “males don’t wear outfits“! f/k/a

Downfall of a Master Criminal
Jimmy suffers from chronic back trouble....and makes a big mistake. The Magistrate shares another day at the office with us. The Magistrate's Blog

News Roundup
Blonde Justice shares two criminal law-related news stories. Blonde Justice

And Finally...

Doh! Homer Painting Upsets Pagans
Pagans have pledged to perform "rain magic" to wash away cartoon character Homer Simpson after he was painted next to their famous fertility symbol - the Cerne Abbas giant. Sky

Juror arrested for listening to music
A juror has been arrested after she was caught listening to an MP3 player during a murder trial. Roll On Friday

US cons attempt copyright-based prison break
Four inmates of Oklahoma's El Reno federal prison have been indicted for what must rate as the most audacious prison break scheme in history. They are alleged to have copyrighted their names then "demanded millions of dollars from prison officials for using the names without authorisation". The Register

Who Reads the Papers
Yes Prime Minister Clip. You Tube

New book about surfing in Britain and Ireland
Alex Wade takes the reader on a tour of some of the best spots and more colourful characters in the British and Irish surfing scene. Buy on Amazon here.

Tuesday, July 17, 2007

Surf Nation

Surf Nation is a great new book by Alex Wade, the author of Wrecking Machine as well as the writer of The Times' surfing blog.

With this book, the author embarks upon an eighteen month quest to survey the surf and the surfers of Britain and Ireland. In doing so he travels from Jersey to the Orkneys, via Cornwall, Wales, the west coast of Ireland and even over to Brighton and East Anglia. In doing so he brings to the public's attention what for many years has been regarded as somewhat of a sub-culture. Not only that but despite what many people might think, he shows that surfing over here is alive and well. In each area, he seeks out the locals and listens to their stories, from which he builds a picture of a community of surfers across the land.

Within this portrait he also reflects some of the thoughts of the surfers he is writing about and ponders on the essence of surfing itself. For example, he says,

"Eventually, sitting on my board waiting for another wave, I fell to simple gazing at the water, alternately watching the bulge of waves and the way in which they broke just a few yards ahead of me, and then turning to look to the horizon to wonder at the waves gleaming as far as the eye could see, like blue silk rippled by an invisible force. Was this Melville's 'image of the ungraspable phantom of life', the key to it all, as Ishmael reflects at the outset of Moby-Dick?"

This is a thought-provoking and interesting book and I would highly recommend it for both surfers and non-surfers alike. You can buy it now on amazon.

Monday, July 16, 2007

Weekly Review


Legal News

Wigs and gowns to be abolished
The wearing of wigs and gowns in civil and family courts is to be abolished, the Lord Chief Justice has announced. The centuries old tradition of the horsehair wigs is to go in large numbers of trials from next year, along with wing collars and bands. CPD Webinars

Train crash survivor who killed loses cash bid
A survivor of the Paddington train crash who claims he was turned into a killer by post-traumatic stress disorder has lost the bulk of his bid for compensation. Telegraph

Ryanair and Easyjet lose French battle
Easyjet and Ryanair must apply French employment laws to staff operating from the country after a court threw out an attempt by the two budget airlines to bypass local rules. Times

Terror alert: legal experts warn of potential pitfalls in over-enthusiastic checking of staff
Legal experts have warned that encouraging HR professionals to take more responsibility for checking and monitoring immigrants coming to work for them could "land them in trouble". Personnel Today

Google in court over 'misleading practices'
Google, the world’s biggest search engine, is to face a court case over allegations it is promoting deceptive business practices. Telegraph

B&Q sues Chinese supplier over 'bullying' allegations
B&Q is suing a Chinese company for defamation over allegations that the DIY retailer has been illegally squeezing local suppliers. Times

Best of the Blogs

Interview tips
BabyBarista's alternative guide to passing an interview. Baby Barista at the Times

No senior discount at the ethics bar
David Giacalone suggests that our profession needs to confront the growing problem of aging attorneys. The Complete Lawyer

Bar finds a seat in the last chance saloon
There is a story going round the criminal Bar about a Crown Court judge who recently took exception to the increasing tendency of the Crown Prosecution Service (CPS) to deploy its own barristers for court advocacy. Legal Week

Why are lawyers miserable?
Sathnam Sanghera asks the question. Times

Bad practice
Nearly Legal compares himself to Julius Caesar. Nearly Legal

And Finally...

Squirrel spy ring
Police in Iran are reported to have taken 14 squirrels into custody - because
they are suspected of spying. Sky

Weirdest workplace disputes
Some of the more colourful UK employment disputes from the past few years. Times

Tree leaf robs bank
A thief robbed a bank in the US – disguised as a tree. Mirror

Prosecutors cannot find God
A Romanian convict's legal action against God has failed - because prosecutors could not find God’s address. Ananova

The front fell off
Did it really? Watch the interview and decide. You Tube

Monday, July 9, 2007

Weekly Review

Legal News

‘Ginger’ compensation payout
A red-headed waitress has been awarded £17,618 compensation by an employment tribunal after being taunted about the colour of her hair and experiencing lewd and embarrassing comments. CPD Webinars

Telephone trade as good as a written contract, High Court rules
The High Court has confirmed that despite major technological advancements and cultural changes, the principle of “my word is my bond” is still relevant in the modern world. In the first case of its kind, a judge has ruled that an investment fund could not pull out of a financial transaction after circumstances made the deal substantially less attractive. Times

New rebuke for Da Vinci judge
A high court judge has been severely criticised by senior judges for refusing to stand down from hearing a case involving a partner in a firm of solicitors with which he had unsuccessfully tried to negotiate a job while on the bench. Guardian

Welsh lawyer faces fine over miners' compensation
A Law Society council member has admitted to five breaches of professional rules in relation to his dealings with the miners' compensation scheme. The Lawyer

Asbestos widow's £300,000 payout
The widow of a chip-shop fitter who died after prolonged exposure to asbestos has won more than £300,000 damages. Halifax Courier

Best of the Blogs

Priceless
Rear end shunts, dodgy claims and mastication - all in a week's mischief for BabyB. Baby Barista at the Times

The bogeyman is coming to get you…
Charon QC considers important topics such as dead bodies, terror incidents, nail fungus, servants, Gordon Brown and the new smoking laws. Not necessarily in order of importance. Charon QC

Smokin'
Leagle Beagle admits that he lost interest in the smoking debate ages ago. Leagle Beagle

The Plastic Fantastic
Inspector Gadget plays “reassurance policing" with us. Inspector Gadget

No need to let religious freedoms go up in smoke
David Pannick QC says - there was a Scotsman, the Pope and a disciplinary tribunal for advocates. Stop me if you’ve heard it. Times

And Finally...

Woman seeks $25,000 for chewy sweet

The insanity of the American justice system was demonstrated this week as lawyers commenced proceedings against Mars Inc for making their Starburst Fruit Chews too, err, chewy. Roll On Friday

Air Tranny Controllers In Dress Code Protest
US air traffic controllers upset about a dress code have shown their displeasure - with some men turning up to work in women's clothing. Sky

Anti-hooligan match ends in punch-up
A football match organised to promote non violence among fans in Germany ended in a mass punch-up. Ananova

Vicar's unholy smoke stunt fails
A vicar who lit his pipe in a Kent police station as a protest against the smoking ban has failed in his attempt to get himself arrested. BBC

Special Delivery: Postie Plays Midwife
Postman Ryan Davenport has made a special delivery while on his usual round in South Wales - a baby. Sky

Wednesday, July 4, 2007

The Law on Penalty Charges

This article by Tim Kevan and Anthony Johnson appeared on the Bar Council Blog dated 3/7/07

Much has been written about the David and Goliath type dispute between the banks and their customers over their charges in recent weeks. However, there has been little explanation of the main legal issues.

The charges at the heart of this dispute have generally been levied for issues such as late payments, bounced cheques and exceeding overdraft limits. Customers are raising a number of legal issues. The first is that such charges are unenforceable under the Unfair Contract Terms Act 1977. Section 4(1), they say, limits the extent to which a bank can claim an indemnity for breach of contract. In particular, any term allowing the bank to do so must be reasonable, something for the bank to prove and taking account of what the parties originally contemplated (section 11).

The next argument relies upon the Unfair Terms in Consumer Contract Regulations 1999. Penalty charge clauses are argued to be unenforceable under Regulation 5(1) due to being unfair, a concept which takes account of the balance of power between the parties. One example of an unfair term is given in Schedule 2 as one which has the effect of requiring disproportionately high compensation for breach of contract.

The other main argument based upon statutory provisions is that where the charges haven’t been clearly agreed beforehand, they should be reasonable under section 15(1) of the Supply of Goods and Services Act 1982. In addition customers also point to the common law and cases stemming from Dunlop Pneumatic Tyre Co v New Garage & Motor [1915] AC 79 which restrict the recoverable amount on a “penalty clause”. This has been defined as a sum that is “extravagant and unconscionable in relation to the greatest possible loss”. The amount, they say, must represent a genuine pre-estimate of loss.

In response to these arguments, the banks have said that the charges are a genuine estimate of the costs caused by the customer’s default. The difficulty in this respect is an evidential one as banks may be reluctant to give out sensitive information as to their whole costs structure. More attractive for them is to sidestep the penalty charge/breach of contract debate completely and argue simply that they are merely the usual charges for standard banking services. This in itself raises the distinction between penalty charges and standard fees, something that is likely to become crucial as the cases progress through the courts.

Whatever the end result, the battle lines have certainly been drawn and with the number of claims being issued almost bringing the online system to a halt it looks set to be a battle which will rumble on for a long time yet.

Tim Kevan is a barrister and Anthony Johnson a pupil barrister at 1 Temple Gardens

Monday, July 2, 2007

WEEKLY REVIEW

LEGAL NEWS

Barristers should use ‘blush test’ when offering hospitality
The Bar Standards Board (BSB) is suggesting a “blush test” as guidance to barristers when offering hospitality and gifts to solicitors and clients. CPD Webinars

Google sued over defamatory postings found on web search
Google, the world's biggest search engine, is being sued by a London businessman in a landmark legal action that could hold the US-based company liable for the publication of inaccurate, malicious or damaging material on the internet. Independent

Sacked high-flyer settles
A highflying Sky TV executive, who negotiated the Simpsons contract for the satellite channel, has received an undisclosed settlement after claiming that she lost her job because she was pregnant. Times

Judges told to stick to the day job as mediation pilot fails
The controversial pilot scheme in the Technology and Construction Court (TCC) to test whether judges can act as mediators looks doomed to failure after being used just twice during its first year. The Lawyer

TUC publishes migrant worker safety guide for employers
The TUC has published an employers’ guide to help ensure the safety of migrant workers and warns employers that many migrant staff are more vulnerable than UK employees to illness, injuries or death at work. Personnel Today

Crash victim to get £2m compensation
An East Yorkshire man who is permanently wheelchair-bound after a car accident will receive more than £2 million in compensation in a landmark House of Lords ruling. The amount was cut by a quarter because he had not been wearing a seatbelt at the time. York Press

BEST OF THE BLOGS

Quelle chance
BabyB ties up some loose ends with ThirdSix and TopFirst before hearing wise words from OldRuin “It’s the dark ingredients of the soul which give us strength BabyB. Cherish the gift for it takes us closer to heaven than ever we’d realise…” BabyBarista at the Times

Can he deliver?
The Psychiatrist has 3 words of advice for Alan Johnson, the new secretary of state for health -‘Patients, Patients, Patients.’ The Psychiatrist

Justice without force is powerless; force without justice is tyrannical…
Charon QC quotes Blaise Pascal’s aphorism on the start of the Brown government. He eschews ‘era’, ‘new dawn’ or any other cliche - because Brown is regarded as a serious politician, who has expressed the desire to preside over a government of all the talents, return to the idea that Parliament should play a more prominent role and do his utmost. Charon QC

Taking Liberties
Lawyer-2-be reviews the film Taking Liberties Lawyer-2-be

Jailhouse quotes
Blonde Justice reports on Paris Hilton’s quote from her time in jail – “Don’t serve the time, let the time serve you.” Blonde Justice

Out of ivory towers and into mosques
Frances Gibb tells how Judge Geoffrey Kamil is leading the push by judges to forge links with their local communities – and encourage them to join the justice system. Times

AND FINALLY...

A proper property search
At last someone has come up with a very simple Google-type search engine which allows you to look for the property you're after and doesn't bombard you with a hundred irrelevant ones. Only covering the London area so far but perhaps it will be further afield soon. It's called Zoomf and is at www.zoomf.com

Location location location
Was live TV the place for this? A US news reader refuses to read the Paris Hilton story and shreds it on live TV. You Tube

Bank tells woman she's dead
A Shropshire pensioner trying to withdraw money from her savings account was refused - because she was 'dead'. Ananova

Sleeping on the job
A skint British Airways worker slept in a works' store cupboard for nearly eight months. Stephen McNally bunked down among computers and photocopiers to avoid security. Mirror

Rank takes on the smoking ban with mobile bingo
Rank Group is installing outdoor shelters with gambling machines at its Mecca Bingo clubs in an attempt to mitigate the impact of the smoking ban in England. Guardian