Faites vos jeux, Flopsy, Mopsy and Cottontail

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.



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.