Newswire 91
==========================
uklawyers legal newswires
==========================
By Steve Butler and Joe Reevy
Number 91
9th March 2006
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Contents
========
The Leading Question - David Mills, One of Us?
Management Training for Professionals Feature
NCIS Feature
Site Of The Week - www.nowhinashwindfarm.co.uk/
uklawyers legal newswires
Practical Cases and Materials
Lawindexpro
Wallace & Gromit Section
Oh! What Lovely Law!
Legal Practitioner
The Leading Question
~~~~~~~~~~~~~~~~~~~~
David Mills, One of Us?
-----------------------
I can't help feeling that David Mills, the husband of Tessa
Jowell, is suffering as he is simply because he is a lawyer. He's
one of us. If he was acting for a seller in a conveyancing
transaction you'd accept his undertaking to pay off the mortgage -
you'd have to. On the face of it he's respectable, regulated by
the Law Society and a good lawyer. So why has his name been all
over the papers, why is his marriage in a mess and why are the
Italian authorities thinking of prosecuting him?
Lawyers are so public. They stand up in court. They make
statements on behalf of clients. Their name appears on documents
which are prepared. They can always be traced if only via the Law
Society. They have to stick their heads above the parapet at
difficult times for their clients. And when those heads are
sticking out above the parapet they are not wearing helmets. They
have no form of defence. They cannot blame their clients. They
cannot say we were only following orders. They cannot even say
that what they are doing is not their idea, because they will have
advised the client what to do. The buck stops at the solicitor's
door. In most cases the solicitors cannot even blame the
barristers who give them advice. This applies to all lawyers,
from the law centre solicitor preventing her clients from having
their houses repossessed to the Law Lords saying that the
Government is acting illegally.
This public side of the job is not something which actually
affects most lawyers because what they are doing is not
controversial and nobody bothers or even notices. The work which
most of us do is taken for granted which partly explains why their
services are so undervalued most of the time. But when things get
tough for clients the lawyers have to stay in position to stand up
for them. There is no other profession that I can think of where
this duty is so all encompassing and at the root of the work which
is done.
Potentially, overwhelming publicity could happen to any lawyer at
any time and now it is happening to David Mills. Nobody knows all
the facts but he maintains his innocence. So, whether you think
he is innocent or guilty, and pending the final outcome of
whatever happens next, shouldn't you spare a thought for a fellow
professional suffering so publicly because he is a member of your
profession?
Wikipedia entry:
David Mackenzie Mills
http://en.wikipedia.org/wiki/David_Mills_%28lawyer%29
Law Society entry:
http://digbig.com/4gqfw
Regards
Steve Butler
Solicitor
Newswire Editor
mailto:smb@e-solicitors.co.uk
Management Training for Professionals Feature
=============================================
http://www.legalpractitioner.co.uk/lpmanagement.htm
The Legal Practitioner has produced a high level, management
training course with Nick Jarrett-Kerr, Solicitor, Principal with
Edge International and former Managing Partner, Bevan Ashford.
This sophisticated online management course is broken into five
modules with 20 lectures and full supporting material covering
every aspect of modern management in professional service firms.
At 140 GBP + VAT for 15 hours of CPD it is excellent value.
I have met Nick and he is a hardworking management type lawyer.
At least you know that he has been there, rolled up his shirt
sleeves and built up a practice - this is a management guru who
knows what being a lawyer is like. This must make his material,
even though aimed at a slightly wider audience than just legal
firms, that much more relevant to the lawyer in the High Street.
Don't just take my word for it - listen to a sample:
http://www.legalpractitioner.co.uk/managementinaboxdemo/starthere.html
NCIS Feature
============
National Criminal Intelligence Service - believe it or not this
site does not just deal with Money Laundering. NCIS also covers:
> Firearms intelligence
> Counterfeit currency
> Serious sex offenders
> Kidnap and extortion
> Organised vehicle crime
> Football hooliganism
> Football banning orders
> Wildlife crime
as well as drugs of all sorts and, of course, money laundering.
But here is the part most solicitors will need to see at some
stage in their careers:
NCIS Disclosure site:
http://www.ncis.gov.uk/disclosure.asp
Don't forget to use the special codes in the "Field Values List"
http://www.ncis.gov.uk/downloads/FieldValuesList_AppendixA.pdf
Here is the latest guidance from the Law Society:
http://digbig.com/4dxkt
including the very latest subject covered, Private Client work:
22 February 2006
Guidance for solicitors undertaking private client work, either as
principals or on behalf of clients. It is essential reading for
solicitors who undertake trust work, administration of estates,
Powers of Attorney, Court of Protection work, or wealth
management. It covers the application of the Money Laundering
Regulations ( 2003), as well as the Proceeds of Crime Act (2002)
including risk areas.
You might find this interesting too:
Transparency International (TI) is the leading international
non-governmental organisation devoted to combating corruption.
Through its International Secretariat in Berlin and its 99
independent National Chapters around the world, TI works at both
the international and national level to curb the supply and demand
of corrupt practices.
http://www.transparency.org/
Words4Business
**************
You want to get a newsletter out. You want to send press releases
or short articles to your local paper or a journal. You want to
get the material on your website up to date. Client work, admin
duties and a hundred other things stop you.
If you want to get it done, right now, you can: call
Words4Business.
We have what you need. It is professionally written, up-to-date,
at a price that will make you smile and provided by a company that
believes in delighting clients rather than just pleasing them . .
. which is why we are the UK's market leader.
Contact: Words4Business ( http://www.words4business.com ).
Tel: 01392 423607
Fax: 01392 214495.
E-mail mail@words4business.com
*************************************************
Courses - CLT
=============
Central Law Training have an enormous range of lecture topics:
http://www.clt.co.uk/cat.asp?catid=24980
I get the feeling that CLT is not doing as much direct mail as it
used to do and what they send is not as flashy as it used to be.
If true, is this a sign of confidence or a sign of cut-backs? I
like the idea of "Surviving Supermarket Law - Re-Modelling Your
Firm" which is available in many locations nationwide in April and
early May:
http://www.clt.co.uk/course.asp?catid=25969
Site of the Week - www.nowhinashwindfarm.co.uk/
===============================================
http://www.nowhinashwindfarm.co.uk/
I have selected a site about windfarms again because last week the
government accepted a public enquiry decision that the creation of
an enormous wind farm using the highest turbines in the country
(390 feet) at Whinash in Cumbria was not a good idea for the
environment. The site has some pictures on it which show the
effect which the erection of the turbines would have had on the
view of the landscape, including a scrolling landscape picture,
which I thought were quite effective:
http://www.nowhinashwindfarm.co.uk/pictures.asp
There is also a good links page:
http://www.nowhinashwindfarm.co.uk/links.asp
One factor which has not been highlighted is the link between
energy consumption and Home Information Packs. One way to make
things better will be to make ourselves more energy efficient -
the Energy Efficiency section of the HIP is presumably a backdoor
route to force us to take this into account.
Incidentally, last time I highlighted a site about wind farms I
received the following response which goes to show that there are
two sides to every argument:
"Re: Wind turbines
Glad you're getting controversial - I presume that was intended to
provoke a reaction.
What a load of nimbys the Welsh are! Would they rather have the
planet destroyed by the constant reliance on energy produced by
burning fossil fuels while they drive around in their 4x4s! The
turbines are quiet, pollution free and, I think, rather elegant.
For christsake there isn't much else in Wales but wind and rain
and only a few sheep to enjoy the view - Ha Ha!!
I bet when the National Grid was first conceived, everyone
complained about electricity pylons."
By email, name supplied
uklawyers legal newswires
=========================
Many thanks for all the kind and useful comments including:
"Hi Steve,
I always look forward to the weekly wire, but the one this week
was especially good. The reason was the editorial. As a local
government man through and through, it makes a change to see
someone stating what has been obvious for years to those in the
business. I know that the social sector at times needs a hefty
boot up the backside, but I do get rather choked with all the
knocking copy that some people tend to issue (often without
thought) as a matter of course. Keep up the good work (and I do
not just mean the pro social care stuff).
Regards,
Trevor Grundy
"I write to say how well you have put the arguments about the
90-day detention proposal. I agree with every word you say"
"It's one of the few things that arrives in the email each week
that I can honestly say I make time to study."
Don't forget to take advantage of your free trial credit search
with Creditsafe.Com
Contact CreditSafe and ask for:
Gavin Tierney, Account Consultant
mailto:Gavin.tierney@creditsafe.com
2920 886500 ext: 2011
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Tell him you got his name from Uklawyers.
Many thanks to those who have asked their colleagues to subscribe
to the wire. Why not join them? Please ask three friends to
subscribe to this today - just get them to send an e-mail with
their name to mailto:smb@e-solicitors.co.uk with 'subscribe' in
the subject line and we'll do the rest.
PRACTICAL CASES AND MATERIALS
=============================
Commercial and Contract
=======================
The Differing Approach to Commercial Litigation in the European
Court of Justice and the Courts of England and Wales
---------------------------------------------------------------
DCA Speech
Sir Anthony Clarke
Master of the Rolls
23 February 2006
http://www.dca.gov.uk/judicial/speeches/2006/sp060223.htm
Its purpose is to highlight the differing approaches taken by the
English courts on the one hand and the European Court of Justice
("the ECJ") on the other to the exercise of its jurisdiction in
civil and commercial matters. In particular recent decisions in
the ECJ have shown that its approach to anti-suit injunctions is
markedly different from the approach adopted here, especially by
the Commercial Court and the Admiralty Court.
Crime and Punishment
====================
Striking Out As Abuse of Process Because of Delay
-------------------------------------------------
R v S
CA
6 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/mar0.2.htm
Where an application was made to stay proceedings as an abuse of
process because of delay, the judge's discretionary decision
whether or not to grant the application was an exercise in
judicial assessment dependent on judgment rather than on any
conclusion as to fact based on evidence. To apply to the exercise
of that discretion the language of burden and standard of proof,
which was more apt to an evidence-based fact-finding process, was
therefore potentially misleading.
Aiding and Abetting Drunken Driver to Drive Dangerously
-------------------------------------------------------
R v Webster
CA
3 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/mar0.1.htm
Where a defendant was charged with aiding and abetting another to
cause death by dangerous driving, it was not sufficient for the
prosecution merely to rely upon the intoxicated condition of the
driver rather than the manner of his driving. The condition of the
driver was relevant and admissible but did not determine whether
the way in which he drove was dangerous. The prosecution had to
prove that at the time that the defendant permitted the driver to
drive he foresaw that he was likely to drive in a dangerous
manner.
Employment and Discrimination
=============================
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
Statutory Grievance Procedures
==============================
They're like buses: another two EAT cases on statutory grievance
procedures...
What is a Grievance Letter?
---------------------------
2 March 2006
This case largely follows Shergold, but goes a little further. It
is authority for the propositions that:
* a letter before action from a solicitor, which is adversarial
rather than conciliatory and which is intended to claim financial
compensation rather than invoke a grievance, nevertheless amounts
to a grievance letter under s32 of the Employment Act 2002. Thus
the Claimant is entitled to claim in the tribunal, and any award
will be adjusted upwards if the employer fails to invite the
employee to a meeting to discuss the 'grievance'.
* it does not matter that the solicitors' letter was headed
'without prejudice' and therefore would not normally be admissible
as evidence of its contents in tribunal/court. Note that this part
of the judgment (para. 29) was dealt with in a single paragraph,
and is likely to prove controversial.
This is a well-written judgment and is worth reading.
Arnold Clark Automobiles v Stewart & anor.
EAT Judgment
http://digbig.com/4gqfx
3 March 2006
Time Limits
-----------
This case is important...
The Employment Appeal Tribunal (HHJ Peter Clark) has, for the
first time, considered the rather complex s32(4) in the Employment
Act 2002, which provides that no extension of time will be
permitted for lodging a Claim Form unless a grievance letter is
sent within one month of the 'normal' time limit for bringing a
claim.
The EAT held that 'normal' time limit meant something different
from 'ordinary' time limit, which is expressly defined as meaning
the three-month period for unfair dismissal and discrimination
claims WITHOUT any extension on the not reasonably practicable /
just and equitable basis.
Properly construed, 'normal' time limit must mean the time limits
including any escape-route extensions. Thus under the DDA 1995, a
complaint could still be presented to a tribunal even though the
grievance letter was presented more than four months after the
alleged discriminatory constructive dismissal, because it was just
and equitable to extend the ordinary three month time limit for
bringing a claim.
Although not dealt with in the judgment, this will presumably
apply to constructive unfair dismissal cases where a grievance is
not sent within four months, but the Claimant establishes it was
not reasonably practicable to present a Claim within the ordinary
three-month time limit.
The crux of the judgment can be found at paras. 29-38. The appeal
was brought with the assistance of the Disability Rights
Commission.
Spillett v BUPA
EAT Judgment
http://digbig.com/4gqfy
Whistleblowing
==============
Important Decision
------------------
3 March 2006
The EAT (Elias P. presiding) has handed down an important
whistleblowing decision, clarifying the nature of the necessary
causative link between the dismissal/detriment and the protected
disclosure.
The Claimant, a technology teacher at Bolton School, made a
protected disclosure by telling the school that the computer
system was insufficiently secure, and allowed students to hack
into confidential information about other pupils (in breach of the
Data Protection principles).
When the School did not take his concerns seriously, he hacked
into the system himself and disabled some user accounts. Although
he immediately told the school what he had done, the IT department
shut the system down, causing about 1,000 GBP loss in 'recovery'
time. The Claimant was given a written warning and resigned in
protest. He claimed detriment (the written warning) and
constructive unfair dismissal on the grounds he had made a
protected disclosure, leading to the warning/resignation. The
employment tribunal allowed his claim.
The EAT quashed the decision. Under statute, the employee must be
subjected to a detriment "on the grounds that" he has made a
protected disclosure. The protected act is limited to the
disclosure itself, and does not extend to any conduct which is
designed to demonstrate that the belief is reasonable. The statute
protects disclosure but not other conduct by the employee even if
connected in some way to that disclosure.
As Elias P. stated, at paragraph 65: "An employee cannot be
entitled to break into his employer's filing cabinet in the hope
of finding papers which will demonstrate some relevant wrongdoing
which he can then disclose to the appropriate person. He is liable
to be disciplined for such conduct, and that is so whether he
turns up such papers or not. Provided that his misconduct is
genuinely the reason for the disciplinary action, the employee
will not be protected even if he does in fact discover
incriminating papers. Success does not retrospectively provide a
cloak of immunity for his actions, although he will then of course
be protected with respect to the subsequent disclosure of the
information itself. "
Bolton School v Evans
EAT Judgment
http://digbig.com/4gqga
European Views - Not For the Faint Hearted
------------------------------------------
This one's only for true whistleblowing and data protection
afficionados...
The EU's Article 29 Working Party (which all 25 Data Protection
country authorities sit on) has just published an Opinion on
privacy issues related to the provision of email screening
services.
It comes hot on the heels of its earlier Opinion on the
application of EU data protection rules to internal whistleblowing
schemes in the fields of accounting, internal accounting controls,
auditing matters, fight against bribery, banking and financial
crime.
Not for the faint-hearted...
EU Article 29 Working Party Opinions
http://digbig.com/4gqgb
Daniel Barnett TUPE Web Seminar
-------------------------------
When and where?
---------------
Date: Thursday, 16th March 2006 at 11.00am
Duration: 1.5 hours (including Q&A)
Location: your desk!
CPD Information
---------------
The course is accredited by the Law Society for 2 hours' CPD from
the Law Society (which includes time to answer five
straightforward multiple-choice questions at your convenience
after the seminar to prove participation).
What if I can't make it?
------------------------
A recording of the seminar (both powerpoint and audio) will be
available within 24 hours of the seminar.
Course Fees
-----------
Just 135 GBP + VAT
Book Here:
http://www.danielbarnett.co.uk/seminars_tupe_order.htm
Law Society Handbook on Employment Law
--------------------------------------
by Daniel Barnett and Henry Scrope
Third edition just published
49.95 GBP
Click here for more details
http://www.danielbarnett.co.uk/publications_lawsoc.htm
To subscribe to Daniel's Newswire, go to his smart new site:
http://www.danielbarnett.co.uk/bulletins.htm
Daniel Barnett Archive Now Available
------------------------------------
By arrangement with emplaw, an archive for Daniel's bulletins is
now available: http://www.emplaw.co.uk.
House of Lords Decision
-----------------------
Retained Firefighters - Part-Time Workers
-----------------------------------------
Matthews v Kent and Medway Towns Fire Authority and others [2006]
UKHL 8
HL
1 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/HLPC/mar0.3.htm
House of Lords Judgment
http://digbig.com/4gqgc
Retained and whole-time fire fighters employed by the respondent
fire authorities were employed under the same type of contract
within reg 2(4)(a)(i) of the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 notwithstanding differences
in their work activities. In assessing under reg 2(4)(a)(ii)
whether their work was "broadly similar" the extent to which it
was exactly the same was of great importance.
Daniel Barnett's commentary on this case:
The House of Lords, yesterday, allowed the appeal in the part-time
firefighters case. By a majority, the House of Lords held:
* upholding the Court of Appeal, that reg. 2(3)(f) of the Part
Time Workers (Prevention of Less Favourable Treatment) Regulations
2000, which has a residual category when distinguishing what is
(or is not) the 'same type of contract', should not be read in an
over-precise way which allows employers, by setting different
terms for part-time workers, to take themselves outside the scope
of the Regulations
* overturning the Court of Appeal, that when deciding whether work
is of the "same or broadly similar" under reg. 2(4), tribunals
should look at the similarities in the work, rather than at the
differences in the work.
The minority (Lords Cardswell and Mance) thought that the latter
point amounted to dancing on the head of a pin (my words, not
theirs!). However, it enabled the majority of the House of Lords
(Baroness Hale, and Lords Nicholls and Hope) to overturn what they
perceived as an unjust decision and allow the retained
firefighters (subject to further findings of fact) to claim
equality with full-time firefighters.
One cases from the ICLR Site this week:
Health and Safety
-----------------
Burgess v Plymouth City Council: [2005] EWCA Civ 1659
CA
30 November 2005
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/mar0.1.htm
The claimant was employed by the defendant council as a cleaner in
a school. While wiping tables in a classroom she fell over a
brightly coloured plastic container 43cms long, 34cms wide and 25
5cms high, which was in plain sight on the floor between the
tables and the door by which she had entered the room. She claimed
damages for injuries sustained in the fall, alleging that the
council were in breach of regulation 12 of the Workplace (Health,
Safety and Welfare) Regulations 1992. On the trial of liability
the judge found that the container should have been tidied away
before the claimant entered the room; that it had been reasonably
practicable for the container to have been safely stowed away at
the side of the room in accordance with the usual system; that the
container was an article over which someone was liable to fall,
within the meaning of regulation 12(3); and that the council was
in breach of its duty under regulation 12(3) to keep the workplace
floor free of such articles. The judge further found that the
container was plain and obvious to see to anyone who had been
keeping a proper lookout for their own safety and that although
the council was liable for breach of duty the claimant was also
50% to blame for the accident. The School appealed
unsuccessfully.
Family
=======
Family Law: Encouraging A Cooperative, Consistent Approach
----------------------------------------------------------
Law Society Press Release
28 February 2006
http://digbig.com/4gqgd
The Law Society is launching the indispensable second edition of
the Family Law Protocol today. The motivation behind developing
the first edition was to encourage all family practitioners to
adopt a cooperative approach to family law and improve consistency
of practice across the profession.
General
=======
Mental Health - Funding For Transfer to Different Hospital
----------------------------------------------------------
Regina (K) v West London Mental NHS Trust [2006] EWCA Civ 118
CA
22 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.1.htm
A mental health trust was not obliged to fund a placement for
trial leave which a patient's registered medical officer had
decided under s 17 of the Mental Health Act 1983 was clinically
appropriate. The opinion of a registered medical officer on a
matter of clinical judgment was not binding on the Secretary of
State for Health (or his delegate) performing functions under s 3
of the National Health Service Act 1977.
Immigration and Nationality
===========================
A New Points-based System: Making Migration Work for Britain
------------------------------------------------------------
Home Office Press Release
6 March 2006
http://www.homeoffice.gov.uk/about-us/news/points-based-system-announced
The Government will publish a Command Paper outlining the new
Points-Based System for managed migration at 09.30 on Tuesday 7
March. The new system will enable the UK to control migration
more effectively, tackle abuse and identify the migrants who can
most benefit the UK.
Intellectual Property and Computers
===================================
Manual Data Handling "Processing??"
-----------------------------------
Johnson v Medical Defence Union (No 2)
Chancery Division
3 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CHAN/mar0.1.htm
For the purposes of s 1 of the Data Protection Act 1998 there
could be relevant processing of data when part of the operation
was manual and part was automatic.
New Co-Chairs Announced for IT Court Committee
----------------------------------------------
DCA Press Release
2 March 2006
http://digbig.com/4gqge
Lord Justice Neuberger and Professor Richard Susskind OBE have
been appointed as co-chairs of the Information Technology and the
Courts Committee (ITAC), which promotes effective and consistent
use of IT in all 650 courts, and tribunals, in England and Wales.
International/Europe
====================
International Highlights - March 2006
-------------------------------------
Law Society newsletter
1 March 2006
http://www.lawsociety.org.uk/newsandevents/newsletters/international.law
In the news
Brussels update
International human rights
Practice rights
Projects update
Postcard from the United Arab Emirates
Feature: Wither GATS?
Diary dates
Land and Environment
====================
Possession Order Against Bankrupt Tenant - Enforceable?
-------------------------------------------------------
Harlow District Council v Hall
CA
28 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.3.htm
The claimant landlord obtained an order requiring the defendant,
a secure tenant, to give possession by 9 February 2005. The order
was suspended as long as the defendant paid the amount for use and
occupation. On 10 February 2005, the defendant became bankrupt. He
applied to discharge the possession order on the grounds that his
liability for the arrears and costs were debts provable in his
bankruptcy and the order for possession was precluded by s 285(3)
of the Insolvency Act 1986 because it was "a remedy against the
property … of [the defendant] in respect of [those] debts". He
lost - appeal dismissed.
Legal Practice and Lawyers
==========================
On the Campaign Trail
---------------------
Bar Council Chairman Address
March 2006
http://digbig.com/4cwmm
As everyone knows we are engaged in a relentless campaign to
rationalise and improve remuneration for the publicly funded Bar,
writes Stephen Hockman QC. A key aim of our Carter team, so ably
led by Geoffrey Vos QC, the Vice-Chairman of the Bar, has been to
ensure that Lord Carter recognises the vital role of the advocate
in criminal proceedings
Appointment of Legal Services Ombudsman and
Legal Services Complaints Commissioner
-------------------------------------------
DCA Press Release
2 March 2006
http://digbig.com/4gqhw
. . . announced the re-appointment of Zahida Manzoor CBE, as Legal
Services Ombudsman (LSO) and Legal Services Complaints
Commissioner (LSCC). Ms Manzoor was first appointed as LSO for
England and Wales in January 2003 and appointed to the additional
role of Legal Services Complaints Commissioner in February 2004.
Litigation, Courts and Human Rights
===================================
Defamation - Fair Comment Requirements
--------------------------------------
Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB)
QBD
28 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/QBD/feb0.4.htm
Where a defendant pleaded fair comment in defence to a defamation
claim the facts pleaded in support of the defence must have been
known, at least in general terms, at the time the comment was
made, although it was not necessary that they should have been in
the forefront of the commentator's mind.
Reinstatement After Non-Appearance
----------------------------------
Gaydamak and another v UBS Bahamas Ltd and another [2006] UKPC 8
Privy Council
28 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/HLPC/mar0.1.htm
A litigant whose case was struck out because, through no fault of
his own, he failed to appear at the hearing, was prima facie
entitled to have his case reinstated, regardless of the merits,
provided there had been no undue delay and there was no likelihood
of prejudice to any other parties. It was for any party opposing
reinstatement to show that the applicant's case had no chance of
success.
Committal Proceedings - Hearsay
-------------------------------
Daltel Europe Ltd (in liquidation) and others v Makki and others
[2006] EWCA Civ 94
CA
28 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.2.htm
Committal proceedings in the High Court were not criminal
proceedings but were civil proceedings subject to the Civil
Evidence Act 1995. Hearsay evidence which might be excluded in
criminal proceedings was therefore admissible in committal
proceedings.
Limitation Period - Latent Damage
---------------------------------
Haward and others v Fawcetts (a firm) and another [2006] UKHL 9
HL
1 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/HLPC/mar0.2.htm
House of Lords Judgment
http://digbig.com/4gqgg
Where the claimants had brought an action against defendants for
damages in respect of allegedly negligent advice given in
connection with the purchase of a company and relied on the
three-year limitation period in s 14A of the Limitation Act 1980,
they had to show that the date when they had first known enough
for it to be reasonable to investigate the possibility that the
advice had been negligent had been after the commencement of the
three-year period and had failed to discharge that burden.
Money, Property and Tax
=======================
Law Society Goes to Court to Defend the Right to
Choose Who Executes Your Will
------------------------------------------------
Law Society Press Release
7 March 2006
http://digbig.com/4gqgh
The Law Society has intervened in the courts so that partners in
solicitors' firms appointed as executors in clients' wills should
retain their appointment – even if the firm subsequently converts
into a limited liability partnership (LLP). Since 2003, the
probate registrars have been rejecting applications for grants of
probate from solicitors (other than those named in a personal
capacity in the will) where partners in a firm had been appointed
as executors, and the firm had later converted to LLP status. The
Law Society's view is that this policy ignores the intentions of
the person who made the will and just leads to extra costs and
delay in administering the estate.
Tips, Gratuities, Service Charges and Troncs
--------------------------------------------
Updated HMRC Booklet
7 March 2006
http://www.hmrc.gov.uk/employers/e24.pdf
This booklet is for employers and troncmasters within
the catering and service industries. It covers the
treatment of tips, gratuities and service charges for
Income tax, National Insurance contributions (NICs),
National Minimum Wage (NMW), and VAT purposes,
including the treatment where a tronc exists.
Tax Treatment of Charities and Donors
-------------------------------------
Updated HMRC Website
6 March 2006
http://www.hmrc.gov.uk/charities/news-launch.htm
HMRC charities have restructured the Charities and Donors guidance
with a number of enhancements to make it easier to use.
VAT on Company Cars
-------------------
Customs and Excise Commissioners v Elm Milk Ltd [2006] EWCA Civ
164
CA
3 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.4.htm
A claim to recover input tax on the purchase of a Mercedes motor
car for business use by a sole director of a small company
succeeded, it having been established that he intended to use it
exclusively for business purposes and that there were suitable
contractual restraints in place making it unavailable for private
use.
Personal Injury
===============
Debt of Honour to Miners Reaches 3 Billion GBP
-----------------------------------------------
DTI Press Release
6 March 2006
http://digbig.com/4gqgj
The amount of compensation paid to sick miners, their widows and
families has passed 3 billion GBP, Energy Minister, Malcolm Wicks
announced today. The government is currently paying out around 2
million GBP every working day in compensation for respiratory and
vibration related injuries to miners and families of the deceased.
Lord Hunt Dispels "Myth" Surrounding School Activities
------------------------------------------------------
DWP Press Release
2 March 2006
http://digbig.com/4gqgk
"A painfully good example of an excessive risk-averse decision
made with the best of intentions" was how Work and Pensions
Minister Lord Hunt of Kings Heath described the decision by a head
teacher who required children to wear goggles when playing
conkers. What we need to do is give confidence to school heads
and others to take on a sensible rather than over-cautious
approach. . . .
Occupational Voice Loss
-----------------------
DWP Press Release
2 March 2006
http://digbig.com/4gqgm
The Industrial Injuries Advisory Council evaluated the available
scientific literature relating to occupational voice loss and
other vocal disorders. It concluded that there is currently
insufficient good quality epidemiological evidence of an
association between voice loss and particular occupations. The
Council recognises that this is an emerging area of research and
intends to keep the subject under review.
Cases Generally
===============
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Wallace & Gromit Section
========================
Wallace & Gromit win a Oscar.
http://www.aardman.com/flash.asp
Here is the Aardman website - look around to find soundbites,
downloads, and more amusing stuff about these loveable characters.
You can spend ages exploring this site and never get bored. To
turn the music off there is a tiny icon on the W & G site page!
Look out for the bird catching bird flu on the front page.
Oh What Lovely Law!
===================
Text of letter from David Mills, the lawyer at the forefront of
the Tessa Jowell problems, written to his accountants. He claims
he was inventing a scenario to obtain tax advice. What do you
think? What would this tell us, not just about Mr Mills, but
about his partners and colleagues, if it were true?
2 February 2004
"Dear Bob
The brief relevant facts are these.
In 1996 I ended up with a dividend from Mr B's companies of around
1.5m GBP after all the tax and fees had been paid.
This was all done on a personal basis: I took the risk, and kept
my partners right out of it.
Wisely or otherwise, I informed my partners what I had done and,
since it was a substantial windfall, offered to pay them (I think)
around 50,000 or 100,000 GBP each as what I though [sic] was a
pretty generous gesture.
Which shows you how you can be, as they insisted the transaction
should be treated as a partnership profit. To avoid litigation (we
had just merged with Withers) I agreed to put the money on deposit
in my bank until they were satisfied that there would be no third
part claim.
By 2000 it was clear there would be no claim (I knew that all
along) and the money was taken off deposit and paid out; I kept
just under 500,000 GBP out of what was then getting on for 2m GBP.
So all that risk and cost for not very much. The greatest cost was
leaving Withers. I was not asked to leave it, but felt so
uncomfortable there, not least because my Mackenzie Mills partners
had taken most of the benefit for none of the risk, that I really
couldn't stay.
I spent 1998, 1999 and 2000 as a sole practitioner, and it was
evident that the trials were going on, there would be lawyers to
pay and there was always the risk of being charged with something
- which is actually about to happen now as a result of the latest
investigation, which you know about.
I kept in close touch with the B people, and they knew my
circumstances.
They knew, in particular, how my partners had taken most of the
dividend; they also knew quite how much the way in which I had
been able to give my evidence (I told no lies, but I turned some
very tricky corners, to put it mildly) had kept Mr B out of a
great deal of trouble that I would have landed him in if I had
said all I knew.
At around the end of 1999, I was told I would receive money, which
I could treat as a long term loan or a gift. $600,000 was put in a
hedge fund and I was told it would be there if I needed it.
(It was put in the fund because the person connected to the B
organisations was someone I had discussed this fund with on many
occasions, and it was a round about way of making the money
available.)
For obvious reasons of their own (I was at that stage still a
prosecution witness, but my evidence had been given) it needed to
be done discreetly. And this was a roundabout way.
At the end of 2000 I wanted to invest in another fund, and my bank
made a loan of the amount, secured on my house etc., of around
650,000 euros. I paid it off by liquidating the $600,000. I attach
a copy of the dollar account.
I regarded the payment as a gift. What else could it be? I wasn't
employed, I wasn't acting for them, I wasn't doing anything for
them, I had already given my evidence, but there was certainly the
risk of future legal costs (as there have been) and a great deal
of anxiety (as there certainly have been).
This has been going on for more than eight years now. My contract
was aware of how my income earning capacity had been damaged, and
in 1998 and 1999 I was able to send bills from my practice to
certain companies, which were paid and increased my income. But
this was different.
Because I was pretty sure my CGT position was negative overall, I
stupidly made no returns on my transactions. If they are closely
looked at (i.e., where did the money come from to buy the
centurion shares?), I am obviously concerned about what to do and
how this should best be handled.
I attach the key documents.
Yours sincerely
David Mills"
Legal Practitioner
==================
More useful stuff from Consilio:
Law of Contract
---------------
"Misrepresentation- Does a Deputy Judge get it wrong?"
By H. Panford Senior Lecturer at Thames Valley University
http://www.spr-consilio.com/artcontract6.htm
In Laureys v Earl [2005] All ER (D) 96 (Nov) you will find classic
examples (excuse the pun... which will be revealed shortly) of
what appear to be misrepresentations about two motor cars.
Equity & Trusts
---------------
Case Note
"Resulting Trusts and the Quistclose analysis"
by M.Ramjohn Barrister JP
http://www.spr-consilio.com/arttrusts6.htm
A resulting trust is implied by the court in favour of the
settlor/ transferor or his estate, if he is dead. Such trusts
arise by virtue of the unexpressed or implied intention of the
settlor or testator. The settlor or his estate becomes the
beneficial owner under the resulting trust if no other suitable
claimant can be found. It is as though the settlor had retained a
residual interest in the property, albeit implied or created by
the courts. The trust is created as a result of defective
drafting.
Any feedback is welcome, positive or not - we do listen and learn.
Regards
Steve
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