Newswire 122

By Steve Butler and Joe Reevy
Number 122
09 August  2007

The Leading Question

Is the Profession Going to Pot?

Have you been involved in suing another firm of solicitors for non-payment of a bill?

Have you dealt with a solicitor on the other side of a conveayancing transaction where he or she obviously has no idea what they were doing?

Have you dealt with an enormous firm where the staff are constantly changing and nobody takes any responsibility for mistakes, always blaming the person whose desk they have taken over?

Have you had to ask a mortgagee to pay your costs because their gross inefficiency has cretaed work which was entirely unnecessary?

Have you had to deal with a firm in  a conveyancing transaction where they had no control of the actions of their perverse and difficult client?

Have you had to be involved in a probate dispute where it transpires that the other side have not even bothered to administer the estate?

Have you had to deal with that scourge of the profession, the costs draftsman instructed for the unsuccessful defence?

Have you any view on why these things happen - is it because there are too many lawyers; because they are not well enough trained; because the Law Society is incapable of  taking action to protect the profession; because we rely too much on insurance; because the modern world is just too complicated and we do not have the resources to cope???

Please let me know your problems and your views.

Regards
Steve Butler
Editor

Feature

Government toughens money laundering regulations
HM Treasury Press Release
25 July 2007
Today the Economic Secretary, Kitty Ussher, published new tough and targeted Regulations to fight Money Laundering and Terrorist Financing. The Money Laundering Regulations, which will come into effect on the 15th December, are designed to ensure the UK response to money laundering at home and abroad is effective and proportionate.

Law Society Take On The New Rules
Law Society Page about the Regs

UK regulations reach final stage

The final Money Laundering Regulations 2007 are expected to be laid before Parliament in the coming weeks, after a process of refinement by HM Treasury.

Practical Materials

Commercial and Contract

Corporate Officer's Liability for Health & Safety Offence
R v P Ltd and another
CA
Weekly Law Reports Summary
11 July 2007

An offence committed by a body corporate under the Health and Safety at Work etc Act 1974 was attributable to neglect by an officer of that body (or person acting in such a capacity), thereby amounting to an offence by that officer under s 37(1) of the 1974 Act, if the officer either knew of the relevant facts giving rise to the health and safety offence or, if he did not know, should by reason of the circumstances have been put on inquiry as to whether the relevant safety procedures were in place.

Reasonableness of Emploment Restrictive Covenant
Beckett Investment Management Group Ltd and others v Hall and others [2007] EWCA Civ 613
CA
Weekly Law Notes Summary
28 June 2007

In construing a covenant in restraint of trade between a holding company and its employees who provided services through subsidiary companies within a corporate group, the Court of Appeal rejected a “purist” approach to corporate personality in favour of one which had regard to the realities of big business.

Easier access to business advice for small firms
Department of Trade and Industry Press Release
21 June 2007
Hotchpotch of business support schemes to be simplified, says DTI

Radically simplifying the number of business support schemes from 3000-plus to well under 100 is at the centre of new proposals to help small business announced by Small Business Minister Margaret Hodge today.

The proposals will address the wide concern among small firms who frequently tell Government they are confused by the array of business support schemes currently available. They are to be worked up closely with business during a 12-week consultation period which will also draw on the views of Regional Development Agencies (RDAs), local authorities, chambers of commerce and others.

The slimdown would mean that, over time, the backroom costs of providing business support - including much-replicated marketing and administration work - would drop, freeing resource to be targeted to help firms more.

Crime and Punishment

Still Considering The Meaning of Code C After 23 Years
Director of Public Prosecutions v Lawrence
QBD
Weekly Law Summary Report
16 July 2007

The provisions of Code C of the Codes of Practice under s 66 of the Police and Criminal Evidence Act 1984 were not directed to what a defendant was alleged to have said as part of the conduct constituting the alleged crime but to what a defendant was alleged to have said on or after arrest.

1824 Act Still Has Its Uses
JL (A Youth) v Crown Prosecution Service
QBD
Weekly Law Reports Summary
16 July 2007

An accused was “found” in an inclosed yard for an “unlawful purpose” within the meaning of s 4 of the Vagrancy Act 1824 when he had been seen or discovered in an inclosed yard with criminal conduct in mind.

When Can Circumstantial Evidence Be Used As Bad Character Evidence?
 R v Wallace
CA
Weekly Law Reports Summary
16 July 2007

Where the case against a defendant on one count relied on circumstantial evidence relating to other counts charged in the same proceedings, that evidence fell within the definition of bad character in s 98 of the Criminal Justice Act 2003 and was therefore only admissible pursuant to the bad character provisions under that Act.

ASBO Extensions
Leeds City Council v RG
QBD
Weekly Law Reports Summary
9 July 2007

An anti-social behaviour order made under s 1(1) of the Crime and Disorder Act 1998 could be extended on an application to vary its terms.

Private Prosecution Given Go Ahead
E v Davis
QBD
Weekly Law Notes Summary
2 July 2007

Public interest in a private prosecution was established by the nature of the alleged offence as defined in statute not by the circumstances leading up to its alleged commission.

Previous Convictions Not Evidence Of Propensity To Lie
R v Campbell [2007] EWCA Crim 1472
CA
Weekly Law Notes Summary
26 June 2007

If a defendant’s previous convictions were admitted in evidence, the jury could attach significance to them in any respect in which they were relevant and relevance could normally be deduced by the application of common sense.
The mere fact that there was an issue as to whether a defendant’s case was truthful did not mean that evidence could be admitted to show that he had a propensity to be untruthful.

New measures to keep kids safe from sex offenders
Home Office Press Release
13 June 2007
A range of tough new measures that will enhance the protection of children from sex offenders was unveiled today by the Home Secretary, John Reid.

The 'Review of the Protection of Children from Sex Offenders' has carefully considered what extra steps are needed to enhance the protection of children from sex offenders. It looked at evidence from stakeholders, current operational practice and how other countries tackle the issue.

Alcohol limits for leisure mariners to be introduced
Department for Transport Press Release
13 June 2007
Transport Minister Stephen Ladyman announced today that he will be pressing ahead with the introduction of an alcohol limit for non-professional mariners.

The limit of 80 milligrams per 100 millilitres of blood will be equivalent to that already in existence for professional mariners, and will apply to those persons involved in the navigation of a vessel greater than 7 metres in length and/or capable of a maximum speed of more than 7 knots.

Employment and Discrimination
Minister announces new task force to tackle sickness absence
Department for Work And Pensions Press Release
18 June 2007
DWP Minister Lord McKenzie today announced a new vocational rehabilitation task group to help ill or injured people stay in or return to work, and called on employers to do more to support their employees.

175 million working days are lost to sickness absence each year, costing businesses and the economy around £13 billion. Being out of work also affects physical and mental health, and returning to work is often crucial to an individual's full recovery. But very few employers currently offer occupational health or vocational rehabilitation to their employees.

Extra holidays for up to six million workers
Department of Trade and Industry Press Release
12 June 2007
Siix million workers in Britain were today promised up to eight extra days annual holiday with the first four coming in October this year. The extra holidays will benefit up to 3.5million women and 2.5million men.

The Government has published new regulations to boost the minimum holiday entitlement from 20 days a year to 24 days this October, and to 28 days from April 2009.

Family

Adoption Procedure - 2002 Act - Child's Welfare Relevance
In re P (A Child) (Adoption Proceedings)
CA
Weekly Law Notes Summary
27 June 2007

A court’s decision whether or not to grant leave to a parent to oppose the making of an adoption order, pursuant to s 47(5) of the Adoption and Children Act 2002, was “a decision relating to the adoption of a child” within the meaning of s 1(1) of the 2002 Act. Therefore, by s 1(2) of the Act, the paramount consideration of the court was the child’s welfare.

Partnership is the key to tackling domestic violence
Home Office Press Release
22 June 2007
Businesses must play their part in tackling the multi-billion pound cost of domestic violence by raising awareness among managers and training staff, Home Office Minister Baroness Scotland said today.

Speaking at the Unison annual conference in Brighton, she called on unions and employers to work together to promote equality.

Many businesses have joined the Corporate Alliance Against Domestic Violence which was set up in September 2005. It now consists of 160 businesses representing over two million employees and raises awareness of the issue among managers so they are able to spot the signs of domestic violence to help their employees and maintain the efficiency of their business.

Domestic violence costs the UK economy approximately £23 billion each year and costs employers £2.7 billion in lost economic input, absenteeism and sickness.

General

Coroners - Power To Adjourn
R (Pereira) v HM Coroner for Inner South London and others
QBD
Weekly Law Reports Summary
14 June 2007

A coroner’s power to adjourn an inquest under s 16(1)(b) of the Coroner’s Act 1988 was discretionary. Where a reason not to adjourn had been established, a decision to do so made in the exercise of that discretion could not be impugned by way of judicial review provided that the decision had been made rationally, taking into account all relevant matters and in the light of the state’s duty to investigate a death under art 2 of the European Convention on Human Rights.

Government

Attorney General To Step Down
Attorney General's Office Press Release
22 June 2007
“I have been immensely privileged to serve in this office for just over six years. This is a record time for a Labour Attorney General. It has been an extremely interesting and challenging time. However I have wanted for some time to move on and I have told the Prime Minister and the Chancellor that I believe now is the right time to make that move."
Securing our identity: A 21st Century public good
Home Office Press Release
19 June 2007

The National Identity Scheme will place a publicly accountable power to protect identity in the hands of citizens - an essential defence against challenges created by revolutions in technology, travel and society, Home Office minister Liam Byrne told a Chatham House conference today.

Government Not Safe
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-127/05)
ECJ
Weekly Law Reports Summary
14 June 2007

Because, inter alia, the provision in art 5(1) of Directive 89/391 imposing a duty on employers to ensure the safety and health of workers did not require employers to be subject to no-fault liability, the Commission of the European Communities had not established that, by restricting the duty on employers to ensure the safety and health of workers in all aspects related to work to a duty to do that only “so far as is reasonably practicable”, the UK had failed to fulfil its obligations under art 5(1) and (4) of the Directive.

Immigration and Nationality

Keeping children in the immigration system safe from harm
Home Office Press Release
25 June 2007
The Border and Immigration Agency's commitment to keeping children safe from harm was reinforced today with the announcement of an overhaul of the Agency's policies concerning children by Immigration Minister Liam Byrne.

A new amendment to the UK Borders Bill will for the first time place a legal obligation on the Border and Immigration Agency to keep children safe from harm. The Agency will have a duty to have regard to a new statutory Code of Practice when dealing with children as it carries out its immigration functions.

Strengthening Britain's borders through International co-operation
Home Office Press Release
18 June 2007
The Government today vowed to use its international relations to strengthen the UK's border controls, crack down on migration abuse and tackle trafficking.

The pledge was reinforced by Home Secretary John Reid speaking today from Washington in the US, where he announced that the two countries should routinely share information about travellers of interest, people using false documents and other immigration offenders.

Reforms strengthen immigration controls as more foreign national prisoners are removed from the UK

Home Office Press Release
14 June 2007
The Border and Immigration Agency (BIA) today published its first Agency business plan alongside a report into the failure to consider some foreign national prisoners for deportation last year and an update on progress in deporting those 1013 foreign national prisoners from the UK.

Intellectual Property and Computers

Spiky Balls, But For What Purpose?
Green Lane Products Ltd v PMS International Group Ltd and others
[2007] EWHC 1712 (Pat)
Ch D
19 July 2007
Weekly Law Reports Summary

The “sector concerned” for the purposes of art 7 of Council Regulation (EC) No 6/2002 was the sector corresponding to the prior art, and not the sector corresponding to the product class indicated in the application for a Community registered design.

Disclosure In Obvious Patent Case
Nichia Corpn v Argos Ltd [2007] EWCA Civ 741
CA
Weekly Law Reports Summary
19 July 2007

Where the validity of a patent was challenged on the ground of obviousness, and there was no issue of commercial success or long-felt want, disclosure of evidence from the patentee was of limited scope and usefulness. There was, however, no blanket rule that disclosure should not be ordered in such circumstances.

Comptroller General's Powers under Patents Act
Luxim Corpn v Ceravision Ltd[2007] EWHC 1624 (Ch)
Ch D
Weekly Law Reports Summary
9 July 2007

The discretion given to the Comptroller General under s 12(2) of the Patents Act 1977 to decline to deal with entitlement proceedings because the question referred to him involved matters which would more properly be determined by the court was not restricted to highly complex cases.
.

International/Europe

International Arrest Warrant v Extradition
Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy
[2007] EWHC 1624
QBD
Weekly Law Reports Summary
12 July 2007

The amendments to s 2(5)(a) of the Extradition Act 2003 inserted by s 42 and para 1(1), Pt 1 of Sch 13 of the Police and Justice Act 2006 substituting the words “has been convicted” for “is alleged to be unlawfully at large” went only to the content of the European arrest warrant: whereas for the exercise of the power to extradite it remained necessary to show either an “accusation” case or an “unlawfully at large” case.

International Employment Actions - Which Takes Precedence and How?
Samengo-Turner and others v J & H Marsh & McLennan (Services) Ltd and others[2007] EWCA Civ 723
CA
Weekly Law Reports Summary
12 June 2007
Reported 13 July 2007

Where parallel employment-related proceedings were taking place in New York and London it was open to the court, in an appropriate case and where the terms of s 5 of Council Regulation 44/2001 were satisfied,
to grant an anti-suit injunction restraining the New York proceedings.

Common Sense Over Waste
R (OSS Group Ltd) v Environment Agency and others, Department of the Environment, Food and Rural Affairs intervening [2007] EWCA Civ 611
CA
Weekly Law Notes Summary
28 June 2007

A lubricating oil which was collected after use and processed into fuel oil for burning, could as a matter of law cease to be waste before it was burnt as fuel for the purposes of Council Directive 2006/12/EC (“the Waste Framework Directive”.

Land and Environment

Company Escapes Environmental Clean-up Liability
R (National Grid Gas plc) v Environment Agency
HL
Weekly Law Notes Summary
27 June 2007

A private company which had taken over the assets and liabilities of the state-owned British Gas Corporation in 1986 was not liable under legislation enacted in 1995 for the cost of removing contamination from land at a former gasworks which had been sold for housing in 1965.

Rent Review Procedures in Assured Tenancies
Contour Homes Ltd v Rowen
CA
Weekly Law Reports Summary
26 June 2007

Where an assured tenancy agreement contained a clause providing the machinery for the increase of the rent the landlord was not required to comply with the rent review procedure set out by s 13 of the Housing Act 1988.

Legal Practice and Lawyers

Barrister's Negligence
Awoyomi v Radford and another [2007] EWHC 1671 (QB)
QBD
Weekly Law Reports Summary
12 July 2007

The effect of the decision of the House of Lords in Arthur JS Hall & Co v Simons [2002] 1 AC 615 was that advocates had ceased to enjoy immunity from suit by 1991. The cause of action in respect of alleged negligence in 1995 had therefore accrued at that time and not at the date of the decision.

Litigation, Courts and Human Rights

Cherry Picking Libel Jurisdiction Not Allowed
Grovit v De Netherlandsche Bank NV and others
CA
Weekly Law Reports Summary
24 July 2007

An action for libel against the central bank of the Netherlands was not a civil and commercial matter within the terms of Council Regulation 44/2001/EC (the Judgments Regulation on jurisdiction in civil and commercial matters) so as to permit the action to go ahead in the English courts.

The Court of Appeal so held, dismissing the appeal of the claimants, Stefan Carim Ismail Grovit, Felix Fareed Ismail Grovit and Dominic Thorncroft, from a decision of Tugendhat J [2006] 1 WLR 3323 striking out their claim in defamation against the defendants De Nederlandsche Bank NV, and two of its officers, W M E Van Gorkum and S Kereweer.

Religious Rights And Holy Cows
R (Swami Suryananda, representing the Community of the Many Names of God) v Welsh Ministers
CA
Weekly Law Reports Summary
23 July 2007

The decision to slaughter a Hindu community’s temple bullock as part of a general government policy after testing positive for bovine tuberculosis was lawful and justified and was not a breach of article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Though the decision interfered with the community’s right to freedom of thought, conscience and religion the interference was necessary and proportionate given the importance of eliminating bovine tuberculosis and the fact that the slaughter policy implemented Council Directive 77/391/EEC.

House Of Lords Awards Compound Interest
Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners and another [2007] UKHL 34
HL
Weekly Law Reports Summary
18 July 2007

The time had come to recognise that the courts had jurisdiction to award compound interest to a claimant seeking restitution of money paid under mistake when such an award would achieve a just result.

Changing Pleadings in Libel Actions
Adelson and another v Associated Newspapers Ltd [2007] EWCA Civ 701
CA
Weekly Law Reports Summary
9 July 2007

A court would only grant an order substituting a party to an action after the expiry of the limitation period, pursuant to CPR r 19.5, on the ground that there had been a mistake in relation to the name of a party, if it was shown that the person who had made the mistake was the person responsible for the issue of the claim form and that, had the mistake not been made, the new party would have been named in the pleading.

Disclosure of Details of Private Hearing Not Necessarily Contempt
AF Noonan (Architectural Practice) Ltd v Bournemouth & Boscombe Athletic Community Football Club Ltd and another
CA
Weekly Law Notes Summary
2 July 2007

The publication of information concerning proceedings before a court sitting in private did not constitute contempt of court unless that information came within a category specified in s12(1) of the Administration of Justice Act 1960 as amended or the court expressly prohibited that publication.

Benefits Denied To Homeless Not Unfair
R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614
CA
Weekly Law Notes Summary
28 July 2007

Social security regulations, which disentitled a person without accommodation from receiving disability premium, did not discriminate against homeless persons on a ground relating to status for the purpose of art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Pleadings - Withdrawal of Admission - When To Give Leave
White v Greensand Homes Ltd and another [2007] EWCA Civ 643
CA
Weekly Law Notes Summary
28 June 2007

A defendant, who has made a mistaken admission that he had been the designer of a building in pre action protocol correspondence which he repeated in his defence filed in proceedings, could not withdraw the admission without the court’s permission. In considering whether to grant permission the court had to have regard to the question of any prejudice to either party arising from either the grant or refusal of such an application.

Human Rights Affect Soldiers' Actions Abroad Too
R (Al-Skeini and others) v Secretary of State for Defence (Aire Centre and 10 others intervening)
HL
Weekly Law Reports Summary
13 June 2007

S 6(1) of the Human Rights Act 1998 was capable of applying to acts committed by a UK public authority outside its territory where in exceptional circumstances the victim was “within the jurisdiction of the United Kingdom” for purposes of art1 of the European Convention on Human Rights.

Money, Property and Tax

No Payment - No Consumer Credit Agreement
TRM Copy Centres (UK) Ltd and others v Lanwall Services Ltd
QBD
Weekly Law Reports Summary
18 July 2007

It was a necessary precondition of a consumer hire agreement under s 15 of the Consumer Credit Act 1974 that some consideration for the hire was paid by or on behalf of the hirer. Agreements providing for payment to be made only when equipment was used were not consumer hire agreements within s 15.

OFT report says consumers and businesses could get more out of the internet
Office of Fair Trading Press Release
19 June 2007 07:00
The OFT has today released its report into internet shopping. Download a copy from the OFT website : http://www.oft.gov.uk.

The report concludes that the rapid growth of internet shopping is a success story that benefits both consumers and businesses across a range of markets, but that both could do more to make the most of the opportunities it provides.

Hutton announces details of landmark new pensions scheme
Department for Work And Pensions Press Release
14 June 2007
Plan announced as research shows support for tackling saving inertia.
The Government today published details of a landmark new savings scheme to give all employees the right to a workplace pension with a contribution from their employer.

Oh What Lovely Law!

History of Law
1100: First Law School

In medieval Italy, students of law would hire a teacher to teach them Roman Law, especially Justinian's Code Corpus Juris. One teacher, known as Irnerius was particularly popular and students began to flock to him from all over Europe. He taught in Bologna and the surge of students meant that he had to hire other teachers to form the world's first law school. By 1150, his law school had over 10,000 students and contributed to the revival of the Corpus Juris and the spread of Roman law throughout Europe!

Learn more about Irnerius, the Professor Stephen Mayson of his day:
http://www.newadvent.org/cathen/08168a.htm

Legal Practitioner

Mike Semple Piggot and Norman Baird continue their good work on the Legal Practitioner:
Podcasts are coming to be a major part of the Legal Practitioner site.  Try this (serious) discussion between Charon, QC and Nick Jarrett-Kerr, formerly managing partner at Bevan Ashford, is a founding member of Kerma Partners on:
 The role of the managing partner in modern law firms