Getting hurt in far away places

by Whiskers

MIB v Moreno is the penultimate case of the legal year. It should not share the opprobrium of some cases rushed out carelessly by a de-mob happy judiciary eager to clear their desks before long vacation, but it feels rather unloved.  The result is probably the right one for those who value consistency, but I do prefer Moore-Bick’s Appeal Court judgment in Jacobs v MIB on precisely the same point. 

The case is about hurting yourself in faraway countries. Or more precisely, if you do hurt yourself, by what country’s law are your damages to be assessed?  The lex loci delicti, (the place where the accident occurred) as they call it on the continent, or the lex fori – domestic law?  There’s no obvious answer to this.  On the one hand lex loci delicti prevents arguments, especially when there are three nationalities involved eg a French man hits an English woman in Italy.  However once liability is established, then there’s a powerful argument for saying that damages ought to be assessed in the country where the victim lives. 

 This was illustrated by the case of Bloy v MIB which followed Jacobs.  The facts were tragic.  A baby and his mum injured by an uninsured driver, and the damages in the lex loci delicti (Lithuania) were capped and insufficient to compensate the baby for the lifelong care he was going to need.  This is how it used to be in the UK, as illustrated by the House of Lords case of Harding v Wealands.  Liability assessed by Australian law and damages with reference to UK law. 

Lord Clarke was clearly in grumpy mood and didn’t want to be there at all. He brought up Harding v Wealands even before the MIB’s counsel had got his ducks in a row.  Lord Clarke made it obvious that he wished poor Mr Mercer from Essex Court Chambers – a diffident but quietly determined advocate – would shut up and let him go back to deciding what books he was going to take on his hols.

Lord Mance and Lord Toulson were gentler and looked grateful for Mr Mercer’s comprehensive history of motor insurance in Europe. Mr Mercer’s junior was scarily clever Marie Louise Kinsler from 2 Temple Gardens.  She kept passing him notes and whispering the answer to all those nasty questions from their Lordships.

 The question, as Lord Clarke kept pointing out, was a simple one. If, as happened to poor Miss Moreno, you are a pedestrian hit by an uninsured Albanian driver in Greece, should Greek law decide how much compensation you get, or should English law? 

English damages for RTAs are more generous than most of Europe. So Miss Moreno clearly would have preferred those.  On the other hand, the scheme by which the Motor Insurance Bureau was liable to compensate her – Regulation 13(2) of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body Regulations) 2003 (SI 2003/37)(“The Regulations”) – only allowed the MIB to claim damages back from Greece at the level they would have been in Greece.

 Now to put this in context, British drivers who hit people and things in Europe pay damages according to the law of the country where the prang happened. Also, if you’re hit by an insured driver in Europe, you get damages according to the lex loci delicti.  Why then should those with the misfortune to be hit by uninsured reprobates be better off. 

 Well why indeed? Unfortunately, as Moore-Bick LJ said, because our Regulations, which give effect to this diktat from Brussels – the Fourth Directive on Motor Insurance – (although quite a useful diktat in many ways) say that.   And although we now have a policy that UK legislation should be read in such a way as to give effect to EU legislation – the Marleasing case – you can’t just re-write UK legislation to make it compliant.  Or, as Lord Mance said, using Latin for extra gravitas, the court cannot act contra legem.

 Instead, what you have to do is make an application to the European Court of Justice who tells you that your draftspersons are rubbish and then Parliament has to change the offending law. Needless to say this is all a lot of fuss, and quite frankly why bother now that we’re out of there anyway? 

 Once we had been treated to a comprehensive history of motor insurance in Europe with extensive and close textual analysis by Mr Mercer, it was time for Mr Beard to rise. He seems not to have bought a clever little friend along with him.  There was a teenager in the solicitors’ benches, who might have been there on work experience, and behind him four civilians who presumably had come down to London to see justice done.  Although they sat very still and listened attentively, one had to wonder whether it’s kind to force non-combatants to undergo this type of experience.

 Lord Hodge regarded Mr Beard with less impatience, perhaps because Mr Beard did not want to give a revisionist version of the history we had heard. Mr Beard talked much about people having “to lump it”.  Lumpage is a new term of art for when you find yourself on the wrong end of a conflict of laws point, I think.  Lumpage was regarded as a Bad Thing, but a necessary evil, especially when Regulations which were supposed to implement EU law smoothly, without any fuss turn out to do just the reverse.  He resisted all the onslaughts of all five justices, and maintained his submissions of fidelity to the laws of the UK as drafted. 

 You decide: when an SI – a baby law – says this…

 the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.

What’s your reaction?   Act as though the accident had indeed happened in GB. Seems logical? 

Ultimately, though, it was not to be. The Supremes bowed beneath the weight of history and succumbed to the siren songs of pan-European tortious conformity.  

 The words of legal fiction – as if the accident had occurred in the Great Britain – were held merely to extend the existing scope of the MIB’s compensatory liability, not to set out the basis for assessment of loss.

 So, Brexit may be coming some day, but this doesn’t stop their Lordships liking their law nice and tidy. Anomalies are bad, even if Moore-Bick could live with them.

Tell me Sweet little Lies

Versloot Dredging v HDI Gerling Versicherung Industrie AG

[2016] UKSC 45

Should an action be sanctioned according to its actual consequences or is dishonesty itself worth of adverse sanction? Should we punish dishonesty pour encourager les autres, especially where fraud is rampart and difficult to detect?

 Those of you who were fortunate enough to have done jurisprudence will be familiar with the debate, and no doubt this case brought back happy memories of sunlit tutorials to the Supremes.

This is an important case.  On the glorious 12th, not only will we be able to shoot grouse, the fresh faced Insurance Act 2015 will come into force.  (I went to an utterly incomprehensible talk about it by a clever young lad from Fountain Court back in the spring, but still feel unprepared for this glorious day.) The Marine Insurance Act 1906 is amended, but has been given a makeover for the cuddly exigencies of the new millennium.

What the fresh-minted Insurance Act 2015 doesn’t tell us, though, is what a “fraudulent claim” actually is. How rotten is rotten?  This case tells us what “fraudulent claim” isn’t. 

So back to my introductory question, if I set out to do a naughty thing, but do not succeed, should I suffer adverse consequences?  Let’s look at this in the insurance claim context, on a sliding scale.

I set fire to my factory, because it’s making a loss and I need the money from the insurance policy?  Fraudulent/Not Fraudulent?

I think we are all clear on that one. Getting the matches out is way more culpable than falsehoods.  

I pretend that I had ten Hermes scarves in my genuinely lost luggage, when all I had was a few bits and bobs from Primark;  fraudulent/not fraudulent?

Ten’s probably taking the p***.  How about one or two, though?   It’s only an insurance company after all. I suspect most of the readers of this blog probably wouldn’t exaggerate their claim.  Nor would I.  It’s just rather tacky.  And anyway how many Hermes scarves does a girl need?

Now what about when my house is broken into.  In my insurance claim, I say I returned home on the last train, but I didn’t notice anything until next day, when I surfaced with my hangover? 

The truth is that I didn’t go home at all that night.  But I don’t want my husband, (who’s on holiday with the kids) to find out that actually I went home with my  hot new personal trainer, Danny.

 I’m telling a porkie, not to bolster my claim, but so as not to upset the matrimonial apple cart.  Fraudulent? Something we’d all do? Enough to let the insurers wriggle out of their contractual obligations?

Of course, gentle reader, you are not the sort of moral reprobate that would go home with a person to whom you were not married for carnal purposes.  So this wouldn’t apply to you.  But if you were?  Wouldn’t that little white lie be practically a moral imperative?

In this case, the DC Merwestone, an old workhorse of a ship, was wending its way back to the Netherlands from Lithuania.   One of the crew left the wrong tap open and the cruel sea flooded into the engine room causing €3.2m worth of damage.  

The Owners didn’t want tedious and lengthy investigations about the ship’s seaworthiness, and suggested to the Insurers that it was a faulty bilge alarm, or perhaps a stray albatross had caused the mishap.  It wasn’t a very enthusiastic porkie, nor one that they persisted in. As it happened, they were insured for the loss anyway, and but for their porkie, the Insurer would have had to pay out.  The ship was seaworthy too, but they weren’t giving the Insurers a chance to delay a badly needed payout.

 The term of art for this kind of postmodern view of the truth is “a fraudulent device”.  At first instance, Popplewell J held that the Owners were hoist on their own petard and the Insurers had acted lawfully.  He clearly felt unhappy with his decision, though, but was bound by the very firm 2002 judgment of Mance LJ in The Aegeon.

The result is that Gerling got to avoid a contract because the society has traditionally held insurance contracts to be “special”.  Like fiduciaries, a higher standard of probity is expected from policy holders in an insurance contract.  Traditionally insurance contracts have been uberrimae fides.   The “informational asymmetry” merits the law’s special protection.   

What level of protection is appropriate in these egalitarian, fair-minded days.  Should one half-hearted little fib entitle the insurer to a sin tax of potentially millions of pounds?

No, said Lord Sumption, giving the leading judgment. He rebadged “fraudulent device” as “collateral lies”, and came to the conclusion that this mollycoddling of the insurance industry was out of date.  Perhaps such preferential treatment was justified by social context in 1906 when McKenzie Chambers put pen to parchment, but it was wholly inappropriate now.  Dishonesty without consequences should not be so severely punished.  His is a fine, rigorous and historically grounded judgment, where policy is modestly clothed in precedent to give a tailored finish. 

 Lords Clarke and Toulson had a brief assenting chunter, but it was criminal/family judge, Lord Hughes really got his teeth into it.  It would be sneery of me to imagine him saying to himself “Finally, “dishonesty!  I know what that means!”  His judgment is more nuanced than Sumption’s, but essentially comes to the same conclusion.  The court has no business sanctioning mere lack of moral hygiene.

 So it was left to Lord Mance to defend the moral high ground, and his position in The Aegeon.  Any lie is bad, he said.  The informational asymmetry between insurer and insured merits the greatest solicitude.  Any tolerance of dissimulation fosters an environment where fraud can flourish.  It is artificial to draw a distinction between a lie’s intention and its consequences.  The judgment is couched in utilitarian terms, but there is a ring of genuninely held belief.  A lie is a lie.  And that’s all there is to it.

 So back to our examples. The arsonist is not let off the hook, nor the embellisher of genuine claims.  A policy holder with a genuine claim, who tells lies in order to facilitate their claim or save their marriage does not however suffer forfeiture.  Does that feel right?  I think that’s probably a matter of personal taste.

 This  judgment is bad news for the industry, but then so is the new Act. I’m guessing there’s going to be a lot of litigation as insurers work out where they are. 

Note that this judgment deals with the common law position.  If Insurers want to put in anti-fraudulent device wording in their policies, they can, providing that they comply with the transparency requirements of the legislation.

Bailii judgment

Post script:  the DC Merwestone was repaired and continues to plough her weary furrow.

Faites vos jeux, Flopsy, Mopsy and Cottontail

NOVEMBER IMPORT 010
By Cheesy

Playboy Club London v Banco del Lavoro

[2016] EWHC Civ 457

So much to dislike about this case, but so many lolz too.  Gambling, caddish behaviour and tort law.  A dress code for bunny girls that really puts the PWC heels story in perspective. The Respondent here was Hefner’s Playboy club.

Also the story line is reminiscent of an episode of Inspector Montalbano.  Except the plot thickens, or perhaps curdles, in Parma rather than Sicily.  One Hassan Baccarat (Barakat) spends most of his time gambling at the Casino du Liban.  This is near Beirut, and has the cheesiest of cheesy websites:  check it out!

Wishing for something more sophisticated perhaps, he’s recommended a London club by the manager of the Casino du Liban, where the croupiers pretend to be bunnies. And not even convincing ones.  Lebanese Manager recommends Hassan to Chief Rabbit at the Playboy as a fool likely to be soon parted from his money.

So far, so of sociological interest only. But Hassan needs to open an account at the Warren before he can play, and for this he needs a bank reference. Hassan produces the card of one Paola Guidetti, a bank manager at the Parma branch of the Banco del Lavaro.  As this is Montalbano, I’m guessing Paola is luscious and has an audacious cleavage and vertiginous high heels.  Chief Rabbit is far too discrete to approach the bank himself.  Instead he does it through eminence grise bunny, its service company called “Burlington”.

Eminence grise rabbit faxes the bank and using Banco di Lavoro notepaper, sultry Paola responds to the enquiry about her (???) lover’s liquidity.  Good for £1.6 mil, a week, she writes confidently in fluent English, though using a rather unsightly CAPITALISED font.  “PRIVATE AND CONFIDENTIAL.”

Two things are a bit wrong with this.  First of all, the Banco di Lavoro didn’t know that they were credit referencing to Flopsy, Mopsy and Cottontail, But, whether they did, or they didn’t, they are fixed with apparent authority and there is and end of it.  There was no appeal on this.   Secondly, there wasn’t even one lot of £1.6m in the bank account; merely a bank account opened with the promise of that sum to be deposited.

Hassan turns up at The Burrows, and the Flopsy, Mopsy and Cottontail, the Chief Rabbit’s cashiers let him have £800k of chips (or “plaques” as they are called).  The cheques admittedly looked a bit odd, – sort of, uh, photocopies, but as Hassan comes highly recommended, that little detail was overlooked.  Hassan then plays lots and wins a bit and then loses lots.

Yes, I’m guessing you know what happens next, because you’ll all have seen the films/series.  Hassan is unmasked, and, resplendent in DJ, gets into a high performance fanny magnet and is pursued around scenic London by Flopsy, Mopsy and Cottontail. Not that one.  Wrong film. Television isn’t real, you know!

No, the one I’m thinking of, is that the cheques bounce and Hassan disappears back to the Levant, where he carries on gambling happily.  Flopsy et al sue Banco del Lavoro for negligent misrepresentation with damages of £1.25m.  (Paola is let go by the bank.  It seems she has been careless with her favours elsewhere).

At first instance, HHJ Mackie found in favour of Chief Bunny.   Following Heller, which itself involved a dodgy credit reference, he found that Banco del Lavoro was skewered good and proper by Paola, and had assumed liability not just to the Burlington front bunny, but also the Club itself. 

And also, the counterfeit cheques didn’t break the chain of causation.  At least the judge knocked something off the claim for contributory negligence.

The Appeal Court took a different view and allowed the bank’s appeal.  Longmore LJ disagreed that the Burlington reference could also be relied on by the Chief Rabbit. The bank had not assumed any responsibility for the Playboy Club.  of the ambit of Longmore said, that if Flopsy wants to protect the identity of its customers by using a lagomorphic front company, then the bank is entitled to believe that its representation would not go any further.  The learned lord justice pointed out this tactic of “the undisclosed principal” type of jag might have worked in the seminal case of Hedley, but the facts of that case could be distinguished.

Once the court had decided this, then the novus actus point becomes redundant.  However, obiter he held that the counterfeit did not break the chain of causation.  It’s difficult to argue with that. 

I was amused by counsel for the bank’s question to the actual cashier, who accepted the photocopied cheque. 

“Would you have accepted such a cheque in payment for your own car?” 

“Of course not!” the lady replied indignantly.

No new law here, but a nice story for the weekend, with a moral and principled end.

 

NOVEMBER IMPORT 010

The Chief Rabbit

 

Law (Reform) in Action

By Whiskers

In this alleged age of austerity, the great offices and mighty organs of state must earn their keep.  Just as His Grace the Duke of Wellington would be bemused at the sight of the Guards hiring out their mounts to tourists for rides, so in the same way, Lord Eldon would be taken aback, by the vision of civil justice system qua cash cow, rather than something provided for subjects by the sovereign.    Of course Lord Eldon didn’t have such an enthusiastic family division clamouring for funds.

The main thrust of the Civil Courts Structure Review is based on the Susskind père et fils vision of the legal future, where lawyers are replaced by IT systems.  (Although some of us might welcome the thought of being pensioned off, and retiring like the Emperor Diocletian to grow cabbages in Dacia).  It is part of a seismic reform of the courts and tribunals service in England and Wales.

Briggs LJ* is the acceptable, nay the utterly charming side, of this dystopian future. He has been commissioned by the “Lord Chief” (as he calls Lord Thomas of Cwmgiedd, with shades of le Carré) to advise on one small part of this revolution.  The most eye-catching being to subject all claims under £25k to be dealt with on line.  As part of his brief, he is travelling the length and breadth of the jurisdiction, listening to what these days are called “Stakeholders”. (no, not steak holders, Squeaky).

Last week, however, Briggs LJ was consulting a mere hop, skip and a jump away from the RCJ, in the marbled halls of magic circle firm, Freshfields on Fleet Street.  He was the honoured guest of an elite group of dispute resolution knowledge workers**, known as the Association of Legal Professional Support Lawyers. 

Briggs LJ took the assembled shamans through his proposals, but it was clear that he had come not to preach, but to listen.  Giving off the air of a kindly, but razor sharp Classics master, the learned judge appeared genuinely delighted that he had found so many people who were prepared to talk endlessly of portals and costs and access. 

Briggs LJ’s most rapt listener was, however a black Labrador who sat in the front, with his companion human.  It was clear that the learned judge just as taken by Lester – for such was this splendid beast’s name – as Lester had been by Briggs.  Disappointingly, Lester’s companion human said she couldn’t claim the dog was named after renowned human rights lawyer, Lord Lester of Herne Hill.  But if the human rights movement needed a mascot, Lester would fit the bill. 

This “informal consultation process” is a wonderful idea.  Take someone really bright, and get them to go around asking questions of people who are interested in what is being consulted on, and then write an essay about it.  Of course we don’t always get the result we want, or the result that the essay writer envisaged.  You could ask Jackson LJ about how that feels.   

Law Mice was lucky enough to chat with a couple of representatives of Dispute Resolution Plc, (or Practical Law, as I was sternly told they had now rebranded).  Plc is the BFF of shamans, and knowledge workers everywhere. They write about all areas of the law in a calm, accessible and bang up to date sort of way, so it was nice to put faces to content. 

So thanks to them, and to the Freshfields PSL team, for a nice trip away from the wainscot and for an insight into how a country’s justice system develops.

 

*Much admired by Squeaky for the clarity and confidence of many of his judgments.  Squeaky ♥  Curtis v Pulbrooke as all his students will know, not to mention the lengthy Lehman’s case on segregation of trust assets, and last year’s cracker Juliet Bellis v  Challinor.

** Professional Support Lawyers (“PSLs”) are employed by the larger firms to know lots about lots of things.  They spend their time reading stuff so that their colleagues don’t have to.  They like nothing better than answering questions about the minutiae of law and procedure.  Sometimes, they try and share all the things they know with their comrade fee earners either by writing stuff or telling them stuff, often in that City institution, the lunch time training session.

Carlile on State Security and Bed Linen

Law Mice went out on a rare excursion to a local college last night, to hear Lord Carlile, the Lib Dem peer, former North Wales MP, Criminal Silk and one of the Great and Good.   Lord Carlile was also the Independent Reviewer of Terrorism Legislation from 2001 – 2011 and the theme of his talk was the balance between privacy and state security.

An engaging and entertaining speaker, he gauged his audience of law students, thirsty for the waiting refreshments and wore his learning lightly.  Starting the talk with the comedic vision of himself on an exercise bike watching BBC Breakfast at half past stupid in the morning, he said this self-mortification was like state security.  You had to exercise, to enable you to eat and drink merrily without surrendering prematurely to decrepitude.  In the same way, state security existed as a necessary evil for the efficient flourishing of the body politic.

Commenting on our fears of Big Brother and state run thought police, Lord Carlile pointed out it wasn’t the state we had to worry about.  It was Amazon and the online grocery retailers, for example, who truly had our measure.  They know all our little péchés mignons, from an unhealthy obsession with novelty post-its, to a faiblesse for umeboshi plums.

Lord Carlile himself felt that this sort of knowledge in private hands was undesirable. Whether you agree with him or not probably says a lot about you.  (One should, however, probably not base privacy legislation on the middle aged, middle class subject whose greatest sin is binge drinking whilst binge watching box sets).

But the most striking image of the evening was the rebadging of the senior judiciary as Comfort Blanket. Lord Carlile was talking here about the control orders under the Prevention of Terrorism Act 2005, passed in reaction to the destruction of the Twin Towers.

A control order, if I remember correctly, was imposed on people suspected of involvement of terrorist activities, but where there was insufficient evidence to charge them.  There were twenty-three ways control measures, including, for example, restricting the number of mobile phones a person could have, or at its most draconian, removal into a kind of internal exile.  The measures were heavily criticised.  However, there was judicial oversight.

Or as Lord Carlile put it:  what do politicians and Sir Humphreys do when they feel uncomfortable about something?  Get a High Court judge in to review the action/decision or hold a public enquiry.    High Court judges are the ultimate in snuggly-buggly eiderdown accessorizing for the holders of executive powers.

It was a good point, well made, but this rebranding may come as a surprise to the senior judiciary themselves.  All that grafting, all that law, all those little grey cells at the service of Her Majesty, to end up as an item of luxury bed linen!

It is a gracious compliment to a group of individuals whom society, by and large, still values as a body of intelligent men and women, beyond reproach.  One thinks again of Pericles’ funeral oration in Book II of Thucydides’ Histories, when he says “The best virtue of a judge is never to appear in the Daily Mail*.

Were this an episode from a box set, then I would have left the meeting with a warm feeling that the state was good and looking after me.  Even if it did go a bit too far occasionally, then Her Majesty’s judges and kindly senior members of the bar would intervene.    And I’d have got home and found a dead body, hideously slaughtered in my kitchen.

Thankfully, though, I didn’t.  That’s because I still live within the jurisdiction of England and Wales and such trust in the powers that be, may not be too far misplaced.

*μεγάλη ἡ δόξα καὶ ἧς ἂν ἐπ᾽ ἐλάχιστον ἀρετῆς πέρι ἢ ψόγου ἐν τοῖς ἄρσεσι κλέος ᾖ.  Well he said it about women, actually, but it’s a loose translation.

Omerta

Omerta is the code of silence that supposedly binds members of criminal gangs in Italy.  Lawyers take the same vow of silence.  What a client tells you must not be revealed, unless ordered by a court.  The idea is of course that it encourages clients to tell their lawyers the whole truth so they can provide properly informed advice (and don’t get dropped in the clarts when it all comes out six months later…) 

Lawmice were interested therefore to see an item on Legal Futures this week where a solicitor talks about his momentous decision to breach this duty.  Stephen Chittenden is putting his Archbold back on the shelf for the last time after forty years as a criminal defence lawyer, and has unburdened himself of his terrible deed.   We thought it might be interesting to see how the courts had dealt with this ghastly affair. 

In 1978, Mr Chittenden represented a teenager, Fitzroy Brookes.   Fitzroy was accused of murdering his friend and neighbour, sixteen year old Lynn Siddons.  The boy was acquitted. During the course of the trial, the real culprit appeared to be the boy’s stepfather, Michael Brookes. 

Exactly what was going on with the CPS and CID in the 1980s Midlands is difficult to comprehend.  It wasn’t as though Michael Brookes was – in the manner of “Nordic-Noir” – a man of power and influence.  He was a minicab driver.  Nonetheless the prosecuting authorities made a fine Horlicks of it all.  The police even managed to lose a rather relevant pair of blood-stained trousers and a knife.  These had been handed in by the incoming tenant of Michael Brookes’ former council home.   

Unable to get justice for her granddaughter any other way, Lynn’s Nan, Flo, was not prepared to let the matter lie.  As Lynn’s executrix, she brought a civil action against the ensanguined Michael for damages for battery of her daughter.  Tort students may remember the case as Halford v Brookes (no 3).  Civil actions for criminal acts are more common now, but in the 1990s, this was radical stuff.    

Flo’s London solicitors asked Mr Chittenden for his old files from Fitzroy’s trial.   Now, at this stage, as Rougier J makes clear in his judgment, the solicitors were only contemplating an action against Michael.  As it turned out Flo later decided to amend her claim to embrace young Fiztroy just to be on the safe side.  Mr Chittenden did not, at the time of the original request, know that the civil action would eventually be brought against both Michael and his own client.    

Mr Chittenden describes his moral dilemma: 

“I had a murderer out there, wandering free, an inept police force and a distraught family. What do you do about that?   

“I had to do something about it. There’s a dead girl and you have the information to enable a prosecution to be brought. Only your conscience at that point can answer as to what you should do. 

“My mind said to me, ‘You have to do this’, but I was risking being struck off as a lawyer if it ever came out that I had handed over my documents to the prosecution. 

“I spoke to my wife and told her about the predicament and she backed me. We had a young family, three boys, I was risking all that.  But I was torn between professional duty and common sense.  I couldn’t not do it.” 

 Flo won damages for the battery of her granddaughter.  Rougier J gave a powerful judgment in which he found stepdad Michael guilty of Lynn’s murder.  Even the CPS could not ignore this, and in due course Michael was convicted and remains in prison.   

The files that Mr Chittenden sent to Flo’s solicitors came up for judicial consideration in both Halford v Brookes (no 2) before the Appeal Court, and Halford v Brookes (no 3).  Flo was not allowed to rely on the material contained in them.   Rougier J held that there was nothing in them that could not be sourced from the transcript of the 1978 trial. He ordered that the files be returned to their legal owner.   Ultimately therefore Mr Chittenden’s actions had little bearing on the outcome of the trial.  Incidentally, as the client, the legal owner is in fact, young Fitzroy so he ended up with the files.   

But that was not the end of the story.  In Derby Magistrates ex parte B, the stepfather attempted to get hold of the same files to use in his defence. The Lord Chief Justice, Lord Taylor of Gosforth was unequivocal about lawyer – client privilege being sacrosanct: 

“But it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established.” 

Given recent  stories of the authorities bugging client lawyer conferences in prison, this judgment has considerable relevance.   

Mr Chittenden, despite both the High Court and the Court of Appeal taking a neutral view of his conduct, clearly had his dereliction of duty on his conscience.  The interview on Legal Futures now moves from Nordic Noir to Magical Realism.  Mr Chittenden goes on: 

“A couple of years ago, I ran into a former judge while I was on a ferry to Spain. We ended up talking about the Lynn Siddons case and I told him what I had done, releasing the papers.   

“I said to him, ‘Should I have done it?’ and he replied ‘Yes’, so I feel completely absolved.  “It has taken more than 30 years but I feel I have finally got it off my chest. It feels cathartic.” 

I wonder who the judge was.  Probably it wasn’t Sir Richard Rougier himself who died in 2007. I found the interchange oddly moving though.  The informal absolution of a sin from a priest against whose code Mr Chittenden had transgressed.   

A sour note from the SRA saying it is considering its position in relation to Mr Chittenden ends  Legal Futures’ account.  They should get back in their box.  If they cared that much, then they, or their predecessors should have acted back in 1993.  Although given the attitude of the judges involved, that would have been rather presumptuous.   

Lawmice are pleased to wish Mr Chittenden a long and honourable retirement.   

 

Better Call Saul

Just before Christmas, the Court of Appeal dismissed Mr Robert Ekaireb’s appeal against conviction for the murder of his pregnant wife. The appeal was founded on the alleged incompetence of Mr Ekaireb’s brief – Michael Wolkind QC.

Unsurprisingly, the appeal failed. The Lord Chief Justice, Lord Thomas, found that Mr Wolkind should go to bed earlier, concentrate harder, and not play on his blackberry whilst the court was sitting, but that this did not make the conviction unsafe.

What intrigued us, was this paragraph:

Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However, whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

To put this in context. Lawyers were not allowed to advertise at all.  Publicity was considered inimical to the dignity of the calling.  One merely waited for the footfall on the threshold, or the brief with the pink ribbon to be delivered.

Firms of solicitors are now more comfortable with advertising than barristers’ chambers. City solicitors now employ legions of marketing minions. Barristers, however, have a less developed structure and the vulgar business of self-promotion is left to the individual practitioner or the clerks.  Some barristers have embraced the challenge with more gusto.

Barristers with their own personal websites was a new one on us. But why not?  Since 2004, barristers can be approached by members of the public directly.  They do not have to be chaperoned by costly solicitor intermediaries.

Joanna Public has not felt entirely comfortable with going to talk to their Holinesses direct. Other professions, for example accountants and surveyors don’t shy away from chatting with counsel.  After all, that means that clients’ fees can be cut two ways instead of three.

So let’s say you’re in the unfortunate position of Mr Ekaireb, what do you do? After you’ve been arrested, the duty solicitor comes and prises you out of the nick.  The duty solicitor scheme is run by local firms, who use it as a way of picking up work.  Each firm will have its own stable of counsel whom they instruct and you’ll get one of those.

Mr Ekaireb’s solicitor had already chosen junior and leading counsel for him. However, Mr Ekaireb, doing a spot of internet browsing to while away his curfew came upon Mr Wolkind’s website: http://www.topcriminalqc.co.uk/.  So impressed was he with Mr Wolkind’s claims, that he hired him on the spot.

We were intrigued by this new genre of legal self-aggrandisement. Was it widespread?   We set ourselves a little challenge.

Over the Christmas period, getting rather vexed by your Significant Other, you hit them over the head with the empty bottle of Prosecco. Perhaps more than once.  What crime has been committed?  (as criminal law questions have it), but more pertinently – what star internet QC are you going to call?  Was there a goodly choice out there?We typed  “criminal qc” into google and found only these:

http://www.topcriminalqc.co.uk/

http://www.bestcrimebarrister.co.uk/

http://www.bestcriminaldefencebarrister.co.uk/

http://www.criminalqc.com/

http://jeremydeinqc.com/

I’m loving the rank immodesty of some of the website names. Let’s be charitable, though and assume these are merely to attract the fickle attentions of the search engine.

Such charity might be misplaced, when you click upon Mr Wolkind’s link. He is no shrinking violet.  Next to a picture of himself if the strapline “UK’s top Barrister”.  It gets worse…

  “There are great legal minds, even greater legal minds, and then there is Michael Wolkind QC, a man who has no fear when holding your future in his hands”

says the first testimonial on the home page, and then a bit further down this little gem:

 “Michael’s first ever case as Leading Counsel defending in a murder was a front-page dismemberment at the Old Bailey, back in 1985. Nicholas Boyce had killed his wife, Christabel, and chopped and cooked her remains before disposing of her head in the River Thames at Hungerford Bridge. He was acquitted of murder after a jury retirement of less than an hour”.

Poor Christabel.

Then again you can click on video footage of Mr Wolkind on Sky News doing an impressive Barber of Seville type rap on the law of self-defence.  The front page ends with a personal invitation to you:

 If you are facing trial, or if you wish to appeal a conviction or appeal a sentence, and would like to discuss the case with the UK’s top Criminal Barrister and QC, please feel free to contact me for a preliminary conversation.

 Disappointingly, the click through sends an email to Mr Wolkind’s clerks, rather than a chinwag with the real McCoy. For Mr Wolkind has not turned his back on the traditional, chambers system.  He is one of many other silks at 25 Bedford Row.  Reassuringly, however, they are the best Criminal Defence set ever.  We know this because they tell us.  Plus they’ve won awards for it.

Wolkind’s site is very visceral and populist. I wanted to believe in his greatness, but after seeing his performance on Sky News, I wondered whether the patter mightn’t get on the jury’s nerves. Not to mention the judge’s.  Lord Thomas clearly wasn’t impressed. That being said, I’m not in the position of our putative champagne slaughterer.  Perhaps the hagiographic tone appeals to the desperate.

How about www.bestcriminaldefencebarrister.co.uk/? This got us to:

Howard Godfrey QC – one of the UK’s – Best Criminal Barristers

A “serious face” masthead shot.  We liked the more modest approach. Not the best, but primus inter pares. We liked he’d been at it for forty years.  Probably had learnt a trick or two.  His “about” page, mitigates the home page’s serious face.  Here Howard is shown looking slightly more relaxed, without compromising the gravitas.  He sports a pretty pink sweater and is an all-round good egg. He lives in Berkshire with his wife and dog, so that’s a plus point.  He goes on:

 When not working he relaxes by playing with his grandchildren, messing about in a boat on the River Thames, and eating and drinking well. Howard also loves travel, and is a keen photographer. As a former cricketer, he is a big cricket fan, and is a member of the MCC.  Other passions include theatre, film, and art.

Would he be too posh though? Or too old to appeal to a young jury? What if he drowned during my trial, or drank rather too well the day before the Defence’s closing speech? At least he wouldn’t be fiddling with his blackberry during cross examination.  He didn’t look like a blackberry man.

I clicked on one of his videos, of which there are four. I found his inability to look at me whilst he spoke rather alienating.  “Look at me!”  I wanted to say.  “I’m the one who needs your magic”.

Still, he felt right, and sounded right. When he spoke of the importance of maintaining the Defendant’s dignity during the criminal justice process, I saw his point.  I’d probably be feeling a bit short on that myself  if I’d just hit Them Inside with a bottle of bubbly.

Not that Mr Godfrey seemed keen on simple domestics. Indeed he gave us a lengthy exegesis on gang trials and cut throat defences.  Would he get bored if there were only two parties and one of them the silent witness? Would it be his eager junior doing the donkey work, with Mr Godfrey there to lend his hauteur?

Mr Godfrey practices out of 2 Bedford Row.  Another 2 Bedford Row inmate is http://www.bestcriminaldefencebarrister.co.uk/I liked Quentin Hunt’s modesty.  No masthead shot for him, instead panoramic views of the City of London with the Old Bailey tucked in.   A white collar crime man, the site said.  Trust me for your complex VAT fraud, confide your devilish Ponzi scheme into my willing hands.

The video though is disappointing. It’s shot at tricksy angles and starts with huge mouthfuls of platitudes.  Quentin warms up hugely when he talks about paperwork and detail.  He seems like a nice bloke, too. A good thing when it’s you and him for months and months and months in an interminable white collar crime trial.  Not an emotive jury man then, but good with judges I should think.  Perhaps not the brief for the Santa slayer then, but one to remember when HMRC come knocking.

Next up was http://www.criminalqc.com/. Click, and the face of Sir Ivan Lawrence QC appears.  He who was MP for somewhere up North, for twenty years.  No offence to Sir Ivan, but it’s a terrible website! Did the clerks make you do it?  Or did you get the web name for Christmas and didn’t like to be rude by leaving it hanging vacant in the ether?  Nice and smiley and good library, Sir Ivan, but not for me.

At least you know who’re you are getting with Jeremy Dein QC. He is joint head of Chambers at Wolkind’s set and is not afraid to say so.  One minor quibble: I would question the judgment of having quite so many pictures of Jeremy.  If ever there was one, his is a head born to wear a wig.  However he does look quite the ticket in one.

His video is the best, undoubtedly. He speaks plainly and directly to camera and I loved the embarrassed little smile at the beginning of his spiel, clearly aimed at the person behind the camera.  “Do I have to do this?” the smile is saying.

I thought he might be the ideal counsel for our mince pie murderer.  He seems trustworthy above all. Solid.  Not too posh, not too glib.  In addition he writes stuff, speaks at conferences, sits as a Recorder at the Bailey.  Good on his feet, fixing the jury with his reassuring headmasterly air. A a safe pair of hands, a team player  –  a chambers man, not a lone gun out on a limb. Good Westlaw profile too.

So who you gonna call? Well on the basis of these brief researches, Mr Dein, is the one for me, sir. But it would rather depend on whether I trusted my solicitor more than myself to choose my brief.  What other talents could there be out there, too shy to come and talk to me in my drawing room?

And whether, of course, Mr Dein would want to take on the miseltoe mangler, and whether I could afford him.

 

The past is never dead. It’s not even past.

Gavin Edmondson Solicitors v Haven Insurance Company

[2015] EWCA Civ 1230

Once upon a time, Toad’s motorcar shunted Mole’s car.  Mole suffered whiplash to his tail and he went to see a solicitor to see what it was worth.  (Actually, what is more likely, Moley went home, took a few neurofen and went to bed early.  It was only when he was subsequently hounded and haunted by claims farmers that he was persuaded to go and see a solicitor, in the hope everyone would leave him alone).

Minor personal injury – PI – claims are now run through a clever website set up by insurance companies.  It is buttressed by a special protocol for traffic accidents.  You don’t have to use it, but if you don’t, then as a lawyer you might be clobbered when it comes to costs.  It essentially makes communications between the parties easier.

Mole’s solicitor, Badger, fills in a special 17 page form and lodges it on the portal.  It details Mole’s hurty tail and crumpled whiskers.  (Didn’t I mention the crumpled whiskers?  Badger had to point them out to the Mole).  

This is stage 1 of the process, and Badger gets £400.  There are three stages, and solicitors get fixed fees for each of them, plus a success fee plus expenses. Mole doesn’t have to pay anything because this is a no win, no fee deal.  It’s not easy to get legal aid now, and certainly not for a crimped tail and ruffled whiskers.  

Mole is then rung up by the Weasels.  They are the insurance company who insure Toad.  They offer Mole a couple of thousand for his trouble, and Mole accepts their kind suggestion.  He then tells Badger he doesn’t need his help anymore, but thanks anyway.  

So everyone is happy, except for poor old Badger.  Who is going to pay his fees now the insurer and his client have done a deal?  Surely, though, Badger in his carefully drawn retainer (contract) with the Mole must have provided for sneaky-beaky behaviour by punters?  Badger????

Ooops!!!  (weeping emoji).

This is the sad story of Gavin Edmondson “specialist and diverse legal services from a dynamic and progressive firm” based in Cheshire.  What should they do next?  Especially as the Weasels have pulled this stunt on other clients as well.

Well, one of the economic torts instantly comes to mind – those chapters at the back of your Introduction to Tort book from law school that you never looked at.  This would say: you nasty Weasels interfered with my contract unlawfully and I suffered loss.  Sound plausible?  That was pleaded too, but then this dynamic and progressive firm out with a real bad boy of a claim: an attorney’s lien (pronunciation as in David).  

Not heard of that?   This is a magic wand fashioned in that special, mysterious smithy known of yore as the Court of Equity.  Lawyers will know the various mystic phrases: Equity is a patch on the cloak of the common law; equity comes to fulfill the common law, not destroy it.  

Or put another way, Equity throws a loving, protectionist arm around poor Badger and tells the Weasels to pay all of Badger’s costs, expenses and success fees.  Welsh judge, HHJ Milwyn Jarman had been less impressed with Equity’s charms at first instance, but Lloyd Jones LJ completely succumbed to her blandishments.  

There is, he reckoned, something so special about a solicitor, that he should be kept safe from loss by whatever means.  Or to quote Lord Kenyon in Read v Dupper 1795:

“The party should not run away with the fruits of the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances at whose expense were gained.”

We can all agree with that.  If you make a contract, you should keep it.  If you eat a meal in a restaurant, you shouldn’t run away without paying. But bad things happen, and any transaction carries with it a risk of default.  What the solicitor’s lien does is impose an additional liability on the third party former defendant, to pay the bill in default.  Or as Lord Mansfield said in Welsh v Hole 1779:  

An attorney has a lien on the money recovered by his client, for his bill of costs; if the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the Court, they will prevent its being paid over till his demand is satisfied. I am inclined to go still farther, and to hold that, if the attorney give notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned, after notice.  

Actually, here the solicitor didn’t succeed, but throughout the nineteenth century, there were lots of attempts, some of them successful made on the basis of the lien and attracted the “equitable intervention of the court”.

On one level, this makes sense.  The Westdeutsche Landesbank case says that equity fixes on the conscience of a defendant.  If the plaintiff and the defendant are colluding to avoid paying the solicitor’s fees, then one can see that Equity might have a thing or two to say about it.  However litigants are free to settle litigation without involving their lawyers, and the idea of the would be defendant being essentially a guarantor for the solicitor’s fees is a bizarre one.  

The solicitor’s lien found a twenty first starring role in Khans Solicitors v Chifuntwe two years ago.  I do wonder what clever person turned up this case.  The concept lay dormant in the twentieth century apart from a single outing in front of Scarman J.  

Chifuntwe,  a decision of Sir Stephen Sedley, with Ryder and Rix LLJ as makeweights, I found genuinely jaw-dropping.  That “you’ve gotta be havin’ a laugh” feeling takes hold and your normative earning a meagre crust lawyer self puts on its hat and coat and takes a turn around the block whilst the critical legal devil rages itself into a puff of smoke.  

Gavin Edmondson reprises Chifuntwe.  Unlike Chifuntwe however, the insurance company’s behaviour was sharp and a rap on the knuckles was called for.  Quite why though, a court in 2015 would resurrect a rule accepted as established in 1795, and dormant since 1897 (pace Fuld ) to administer the correction, is puzzling.  

Nor is the rule based on solid or consistent legal argument.  It’s clearly not a lien because the fruits of the litigation are not in the solicitor’s actual possession.  If that were the case, there would be nothing remarkable about the doctrine.  However this soi-disant lien is some kind of extra-statutory charge which is either based on collusion – mala fides – or on the doctrine of notice.  Quite frankly Lord Mansfield’s analogy with an equitable assignment is queer.  I note he handed down the judgment on a Saturday morning.  Perhaps after an excessively sociable evening the night before.

The Weasels are seeking leave to appeal to the Supreme Court, and I hope the justices fancy a nibble.  Don’t get me wrong; I don’t hold a brief for a barbary ape dwelling insurance giant.  However digging up this non-contextualised fossil with all the insouciance of a early morning dog digging up a human skull at the beginning of a Scandi boxed set does nobody any good at all.  

On Street Names: Basildon Borough Council v James

This must be one of Garnham J’s first judgments as he was only elevated at the end of October. Quondam Neil Garnham QC of 1COR  (1 Crown Office Row, home of the Human Rights Blog) , his old chambers page has an impressive list of  his heavyweight briefs:  for the troops in the Baha Mousa and Al-Sweady inquiries;  the Security Service in the 7/7 inquest; the Met at the Leveson inquiry; HMG in the Litvinenko inquest.   

With form like that, you don’t need designers to puff you.    His photo is smiley, small and of poor quality.  It immediately invites reassurance. The page is refreshingly clear of vulgar brag tags from legal directories.  I’m guessing he’s good, even if he went to a private school and Oxbridge.  

So rather a come down to be assigned to this little case on street names on an estate in Basildon.  Real name:  Five Links; non-affectionate local moniker: Alcatraz.  Alcatraz was built in the 1960s, when architects and planners were having a notoriously bad hair decade.  The makeover of the estate has been chugging on since the late nineties.  Some of the estate has been demolished, more housing stock has been added.  

I’m guessing the new reconfiguration is why this squall-ette blew up.  The old street names got a bit unwieldy, and the Council decided to mark the beautification process with a twenty first century baptism.  Not that the old ones are bad:  Brendon, Handley Green, Laindon Link, Mellow Purgess, Newberry Side and Somercotes.  A little flares and Angel Delight perhaps, but perfectly commodious.

Street names are fascinating.  Some are descriptive:  Church Lane;  The Shambles;  Buckingham Palace Road.  Planned streets lack this raison d’etre.  Theyare lumbered with weird titles.   “Molly Huggins Close” is a personal favourite.  Victorian developers were no better.  Take Ulundi Road in Blackheath.  Why would you name a street after a colonial massacre?

Mr Gasztowic QC appeared for the Council.  His chambers page has a high def. picture of himself looking enigmatic.  The CV does not condescend to particulars, but is meant to sound grand.    Still it’s a better picture than the Residents’ brief, Ms Moonan.  She has a dark and rather sinister avatar outline.  Perhaps as a criminal defence barrister she is wary of being briefed for Carter-Silk purposes.   There’s not much about her street signage practice either, but good for a girl to have a hobby.

The case came to Garnham J by way of case stated from DJ Branston.  He wrote a stonking 112 paragraph judgment about why the Council was wrong.  

Just in case you don’t know  the provision for naming streets is set out in the section 18 of the Public Health Act 1925.  This harks back to an age when housebuilding was seen as a preserve of public health rather than as a branch of wealth acquisition.

Under section 18, the Council can call a street what it likes.  This is less of a problem when the streets are brand new.  However, here in the Five Links estate, people had been living in these streets all their lives, and didn’t want to wake up in the morning with a whole new address to spell out to call centres.

Any person aggrieved by the proposed nomenclature may appeal to “the petty sessions” under section 8. Appeal from there is to a DJ, and thence to the QBD.

The thing that makes this case interesting is that there’s no case law on the statute even though it’s nearly a hundred years old.  So a blank sheet of paper, and who writes the rules? The answer to that of course is the most senior person in whose lap the question falls.

I liked DJ Branston’s approach, although whether he came up with it himself or adopted it from the nameless advocates below, I know not.  Wednesbury unreasonableness was not deemed suitable, so the judge adopted the analogy of the appeal from a licensing application.  Which was creative.  Based on this foundation, the learned DJ set out seven criteria to which the Council should have had regard:  logic; clarity; utility; attractiveness; public safety, history and the wishes and feelings of the residents.  Pace Oliver Wendell Holmes, a very fine list it is too.  It points to the learned DJ being a practical and tidy-minded DJ.  Aesthetics is well down the list, as is what the natives think.  

The new street names were found wanting, and the losing Council appealed by way of case stated to the Big Court.  Query:  why didn’t they act all consensus and cuddly and  get the residents to vote?  Slightly stalinist to rename stuff in line with the new regime?  

One of the things that makes administrative law frustrating is that big picture questions and creative solutions do not often win out. And so it was here.  Garnham J expressed his disagreement with both sides’ submissions and said the question had been framed wrongly.  The statute and the appeal by aggrieved persons did not allow the adjudicator to set their own parameters.  Instead, the judicial exercise was restricted to saying whether the council had exercised the power wrongly or not.  It was on the aggrieved persons to prove this, rather than, as Branston DJ had done to put the burden on the Council to justify its rebranding decision.  

But the battle isn’t over yet.  The question has been remitted back down to the DJ now that he’s been told what to do.  So the lesson is that even if there’s no precedent for something, don’t think you can mark out your own boundaries.  Not unless you’re top dog that is, and then you can practice street furniture marking as you please, provided it sounds convincing.  Will the residents be able to afford to appeal the judgment, and also as this is virgin territory, perhaps the JSCs might fancy a go?

The war of Alcatraz is not yet over.