Newswire 93
=========================
uklawyers legal newswires
==========================
By Steve Butler and Joe Reevy
Number 93
23rd March 2006
I am pleased to announce that our website has started to function
at last. Have a look at it here:
http://www.uklawyers.co.uk
******** BUDGET SPECIAL ***********
Go to Joe Reevy's Annual Budget Summary
All the complicated stuff the papers don't print in a way you and
your clients can understand.
***********************************
Some of you will be receiving a trial run of "UKLawyers Express"
an abbreviated version of the newswire, as well as this version.
An HTML version will also follow in the next few weeks. This
will give you access to the information in the wire on the site.
Please give feedback about this using the form provided.
Meanwhile, I am continuing to work on the site. If anyone has any
suggestions about how to improve the site or especially ideas
about any features which you would like to see, please let me
know:
mailto:smb@e-solicitors.co.uk
Please ask three friends to visit the website and subscribe to
this Newswire today - follow the link on the site to register for
the wire.
To make sure you continue to receive our e-mails in your inbox,
please add smb@e-solicitors.co.uk to your address book or safe
sender list.
Contents
========
The Leading Question - LSC Recoups Phantom Funds - No Need To Panic?
WikiCrimeLine Feature
HIP Feature
Site Of The Week - http://www.reunite.org/
uklawyers legal newswires
Practical Cases and Materials
Lawindexpro
Yoga Section
Oh! What Lovely Law!
Legal Practitioner
The Leading Question
~~~~~~~~~~~~~~~~~~~~
LSC Recoups Phantom Funds - No Need To Panic?
----------------------------------------------
The Legal Services Commission are starting to claim back costs on
account said to have been wrongly retained by solicitors over the
last 30 years or so. The Law Society has spoken out on behalf of
the solicitors involved. The important thing to remember here is
that this is the LSC - the likelihood is that they have got their
figures wrong. If they reclaim money they have to prove their
case and the chances are that their paperwork will not be up to
it. On the other hand, subject to limitation periods where
appropriate, if they are right, why shouldn't the money be paid
back?
The payment of costs on account by the legal aid authorities (be
it the Law Society, the Legal Aid Board or the LSC) was originally
very restricted. 30 years ago any solicitor could take up
virtually any sort of case on legal aid and it was not unusual for
cases to last many years during which the solicitor would not be
paid anything at all unless he had the good sense to claim
disbursements on account. The rules said that the only way a
lawyer could get costs on account was if he was in severe
financial hardship or if the client changed solicitor and the case
was unlikely to finish within 6 months. Even then you could only
receive 75% of what you claimed. The rational for this was easy
to understand - firms did not then have easy ways to calculate
costs incurred to date and so their figures were unlikely to be
accurate and the system of assessment of costs (then quite rightly
called "taxation") meant that there was always a bit of a lottery
as to the amount you would receive anyway. The advantage of this
arrangement for the lawyer who claimed costs on account was that
it was in his interests to keep his eye on matters to ensure that
he got the final 25%. Files would not therefore be closed. An
eagle eye would be kept on the new firm of solicitors who took
over the case to ensure that they claimed the full costs for the
case as quickly as possible and the original solicitor would
expect to be involved in the final costs calculations. In my view
therefore many claims by the LSC under the old rules about costs
on account will be wrong. My own personal experience is that a
few years ago the LSC made several incorrect claims for costs on
account under that system and I was able to prove all of them to
be wrong.
Then when legal aid franchising was in prospect the LSC changed
the rules to allow claims for costs on account as a sop to the
gullible solicitors who the LSC wanted to persuade to join the new
scheme. They started sending out annual forms asking if you
wanted costs on account. It was a very good automated system and
was voluntary - you did not have to claim the costs if you did not
want to. It was also used as a way of enabling the LAB to keep an
eye on their "work in progress" and was in fact the thin end of
the wedge in their statistical systems - one of the first nails in
the coffin of the legal aid practitioner. The lawyer still only
received 75% of what he claimed and this was on files which were
current and where the lawyer retained control. In normal
circumstances therefore the file would be billed at the end of the
case. The solicitor would be paid (whether by the LSC or the
other side) with full credit being given for the costs on account
already paid. Again there is little scope here for things to go
drastically wrong. The automated LSC systems would ensure that
the lawyer received a reminder about the case at most within 12
months of its completion. The chances are high that the LSC has
made a mistake when they claim errors in this system.
Then the LSC started the franchise system and lawyers were paid up
front for the work they did. This was a recipe for disaster
because the same rules still applied - the system of assessment of
costs was still a lottery. The chance of the amount received in
advance matching the amount actually eventually payable was
minimal. But this was only a few years ago and the firms involved
should still have the paperwork required to deal with any claims
arising out of this system.
In making their claims under any of these systems, the LSC will
have to rely on their own paperwork. This is notoriously
unreliable. I was talking to a colleague recently about a case
where he was still receiving payments for someone he had never
heard of but who the LSC systems showed to be his client. The
changes from the Law Society to the LAB to the LSC and the
enormous new IT systems developed, crashed, changed and renewed by
the legal aid authorities over the years have all inevitably
produced innumerable data entry errors. It will prove difficult
for the LSC to prove their claims. But if they do so, then the
money should be repaid.
The problems arise because the LSC are recouping these phantom
funds from the current payments due to solicitors without warning
leading practitioners to have to fight a rearguard action. This
is wrong. The LSC should give notice of their claims and give the
solicitors the chance to check the figures before the funds are
taken. If it were done in this way there would almost certainly
be no need to panic. Isn't it this which the Law Society should
really be making a fuss about?
Regards
Steve Butler
Solicitor
Newswire Editor
mailto:smb@e-solicitors.co.uk
WikiCrimeLine Feature
=====================
WikiCrimeLine
Richard Susskind is said to have thrown down the gauntlet by
asking why we cannot develop Wikipedia style law resource. So
Andrew Keogh has taken up the challenge and started his own Crime
Wikipedia.
Richard made a speech at the Society for Computers and Law on 6
March. He can be heard on the Society for Computers and Law
(http://www.scl.org/default.asp) site at:
http://digbig.com/4gwjc
This was reported in the Gazette on 16 March:
http://digbig.com/4gwjd
Unlike most people Andrew reads the Gazette and by Friday the 17
March he had got on with it. Andrew's Wiki is at:
http://www.wikicrimeline.co.uk
Last time I looked Andrew was asking for help in designing a logo.
This reminds me of that part of Hitchhiker's Guide where a
committee is trying to design the Wheel and cannot decide which
colour it should be! That totally irreverent joke was in bad
taste but I could not resist putting it in. In fact it is a noble
effort which I had thought about several weeks ago. As long-time
readers will remember I first highlighted Wiki's in September 2004
(Newswire 27) and the thought had been bubbling since then.
Unlike Andrew though I did not have the guts to get on with it. I
tried Andrew's site out at the weekend, starting an article about
Money Laundering. When you think about it, this is an enormous
task. It is easy for Richard Susskind to throw down the gauntlet
but doing it properly is going to take time and effort. For
example, Andrew edited my article to make it look good. I'm
thinking about how best to use UKLawyers to help in this and would
welcome any suggestions as I am sure would Andrew. And if you can
think of a good logo get in touch with Andrew because like all
things nowadays, this project is going to have to be marketed
properly. The search for a logo is actually just as important as
the content itself and helps to make my point that this is an
enormous task. The important thing about the Wiki movement is
that it is collaborative and voluntary but a good Wiki does need
light supervision in the background at all times.
For more about Wiki's go to http://www.wikipedia.org and here is
the US version of the legal Wiki:
http://en.wikipedia.org/wiki/Portal:Law
and here is an attempt at Australian Law:
http://en.wikipedia.org/wiki/Wikipedia:WikiProject_Australian_law
You will see the thought and effort which is having to go into
this project.
HIP Feature
===========
In the week when the government has issued the provisional
timetable for implementing HIPs (see below), it is instructive to
look again at the report of one of the stakeholders in the scheme,
WHICH?, and the now clearly mistaken assumptions upon which they
supported the idea:
http://www.which.net/moveit/campaign/hips.pdf
eg buyers will not need their own reports for valuation purposes;
stiff penalties will be imposed for non-compliance;
reports will be paid for by mortgage providers.
Many of the assumptions are looking more and more questionable and
it is astonishing to me that an organisation which supports
consumers should be involved at the birth of a new conveyancing
cash cow in the hands primarily of estate agents and surveyors!
Here is the text of a letter I sent to the Law Society Gazette on
10 March but which at the time of writing has not been published:
"Dear Sir
Re: The Law Society and HIP's
It was refreshing to see the President at last repeating some of
the arguments against HIP's in his letter published by you on 9
March 2006. He failed to mention the main argument namely that
buyers will still have to commission their own survey: firstly, to
satisfy their mortgagee and secondly to protect their own
interests because the Home Inspector will have no liability to
them for any errors in a report. As a result the claimed savings
will be illusory. It is a pity that the President is now ignoring
all the arguments he lists and supporting the scheme when the CML
and independent estate agents are at last getting their act
together to object to it. The only people now supporting the
scheme are the stakeholders who originally thought of it and
significantly the large numbers of organisations which have spent
millions in developing HIP systems which they clearly see as yet
another cash cow in the conveyancing process. The Law Society has
aligned itself with these by forming a partnership with MDA to
provide a HIP service. Please could the President answer these
questions: How much of our money has the Law Society invested so
far in developing its scheme and what is the projected future
investment until June 2007; How much does the Law Society stand to
lose if the scheme is abandoned; Was it an express or implied term
of the arrangement with MDA that the Law Society would stop
lobbying against the scheme?"
To be fair, the Law Society has raised concerns this week but its
influence will be weakened by the conflict of interests it has
created by embracing its MDA scheme.
Words4Business
**************
Image:
http://www.words4business.com/w4b_logo.gif
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 - Nick Jarrett-Kerr and Joe Reevy
=========================================
Understanding and Improving Law Practice Profitability
------------------------------------------------------
Joe Reevy and Nick Jarrett-Kerr are presenting this conference on
23 May at Exeter Football Club. 5.5 hours of CPD. Only 235 GBP
plus VAT (less if you are members of Devon and Exeter Law
Society). This is good value advice from the leading law
management gurus in the UK.
Contact details:
Lydia Vanstone, Devon & Exeter Law Society, Suite 5, Renslade
House, Bonhay Road, Exeter. EX4 3AY. DX 8361 EXETER
Tel 01392 411585. Fax 01392 431511
e-mail. mailto:lydia.vanstone@devonlawsociety.org.uk
Site of the Week - http://www.reunite.org/
==========================================
http://www.reunite.org/
"We are the leading UK charity specialising in international
parental child abduction. reunite was formed in 1986 and
registered as a charity in 1990. We provide advice, information
and support to parents, family members and guardians who have had
a child abducted or who fear child abduction. We also provide
advice to parents who may have abducted their child as well as
advising on international contact issues. However, acting strictly
within the law, reunite will do all it can to assist parents who
may have abducted their child. Emphasis is placed on helping
parents to come out of hiding and to regulate the child's position
within the law."
Reunite now has an information resource covering 40 countries
which is now available and can be viewed by clicking on Islamic
Resource Information on the main menu.
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
Gavin.tierney@creditsafe.com
2920 886500 ext: 2011
http://www.creditsafe.com
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
=======================
Insurance, Reinsurance
----------------------
Casualty and General Insurance Ltd v JLT Risk Solutions Ltd
Langley J
Commercial Court
15 March 2006
BAILII Judgment
http://www.bailii.org/ew/cases/EWHC/Comm/2006/485.html
Duties of Brokers. Contributory Negligence. Mitigation.
Insurance
---------
BP Plc v Aon Ltd & Anr Colman J
Commercial Court
13 March 2006
BAILII Judgment
http://www.bailii.org/ew/cases/EWHC/Comm/2006/424.html
Whether a placing broker in no contractual relationship with the
primary insured was under a duty of care in tort to the insured in
respect of the declaration of risks under an open cover. Whether
primary insured in breach of duty to mitigate loss. Correct
measure of damages for breach of duty of care.
Crime and Punishment
====================
Money Launderer - Confiscation Orders
-------------------------------------
Regina v Glatt [2006] EWCA Crim 605
CA
17 March 2006
http://www.lawreports.co.uk/WLRD/2006/CACRIM/mar0.5.htm
When the court was imposing a confiscation order, s 74(4) of the
Criminal Justice Act 1988 Act did not apply to the assessment of
the value of benefit under s 71(4) of the same Act. Case about a
confiscation order imposed on 29 May 2002 in the sum of
3,676,508.50 GBP on a solicitor!
After Event Reports Cannot Usually Be Considered
on "Lenient Sentence" Appeal
------------------------------------------------
Attorney General's Reference (No 19 of 2005)
R v B (WP)
CA
16 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/mar0.4.htm
Where the Attorney General sought to refer a sentence to the Court
of Appeal as unduly lenient, it was not open to that court to take
into account new material which had not been available to the
sentencing judge, provided that the conclusion that the judge had
reached was appropriate on the facts before him.
"Possession" of Inaccessible Computer Images
--------------------------------------------
R v Porter
CA
16 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/mar0.3.htm
Where a person deleted images on his computer but they remained on
the computer's hard drive, he did not possess them for the
purposes of s 160(1) of the Criminal Justice Act 1988 if he could
not retrieve or gain access to them.
Government Climb Down Over Abolishing Juries in Fraud Trials
------------------------------------------------------------
Law Society Press Release
14 March 2006
http://digbig.com/4gwje
The government has today announced that it will not be using
existing powers to remove juries in fraud trials in the face of
sustained criticism from the Law Society and other bodies. The
government has conceded that it does not have full parliamentary
support to use section 43 of the Criminal Justice Act 2003 to
remove trial by jury in fraud cases. The Law Society believes the
availability of trial by jury in all serious criminal cases is a
fundamental right, vital to the rule of law.
Local Authority's Duty To House Arrested Youth
----------------------------------------------
R (M) v Gateshead Metropolitan Borough Council
CA
14 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.7.htm
Any local authority which received a police request to provide
accommodation for an arrested juvenile was obliged under s
21(2)(b) of the Children Act 1989 to provide that accommodation
and the duty was not limited to a local authority in whose area
the child was located at the time of the request. The section did
not impose an absolute obligation to provide secure accommodation,
but simply accommodation.
Employment and Discrimination
=============================
Criminal Records Bureau Rules Changed
-------------------------------------
Home Office Press Release
16 March 2006
http://digbig.com/4gwjf
The new regulations will enhance the ability of the Criminal
Records Bureau (CRB) to deliver a first class service, at the same
time as moving forward with the recommendations of the Bichard
report and ensuring that CRB checks are used responsibly. The
regulations laid today, to come into effect from 6 April, will:
* extend entitlement to enhanced CRB checks for all staff working
in schools;
* set new disclosure fees at 31 GBP for the standard disclosure
and 36 GBP for the enhanced disclosure, an increase of 1 GBP plus
inflation;
* introduce a 6 GBP fee for a POVAFirst check (POVAFirst checks
and disclosures will remain free of charge in respect of
volunteers);"
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
21 March 2006
Discrimination
--------------
In Brown v London Borough of Croydon, the EAT has reaffirmed that
it is not necessary for tribunals to adopt the traditional
two stage approach when considering discrimination claims.
Traditionally, tribunals have been expected to consider the
separate questions of (1) was there less favourable treatment of
the Claimant? and, if yes, (2) what is the reason why the Claimant
was treated less favourably?
Until Shamoon v Chief Constable of Northern Ireland was decided by
the House of Lords in 2003, it was an error of law (and thus,
capable of appeal) if the tribunal did not identify, and answer,
these two questions in turn. In Shamoon, the House of Lords said
it was not always necessary to ask and answer the two questions,
and in appropriate cases (usually with a hypothetical comparator)
it was permissible for tribunals simply to ask, 'why was the
Claimant treated that way?'
Notwithstanding Shamoon, in Igen v Wong the two stage test was
reaffirmed. Now, the EAT has restated that it is not compulsory to
adhere rigidly to the two-stage test, and that in an appropriate
case the traditional sequential analysis is not necessary.
Brown v London Borough of Croydon
EAT Judgment
http://www.employmentappeals.gov.uk/uploads/UKEAT0672052022006/index.htm
Collective Redundancy Consultation
----------------------------------
The EAT, in Vauxhall Motors v TGWU, has given guidance on when
(and if) an employer needs to begin fresh consultation with a
union about multiple redundancies under TULR(C)A 1992, s188.
Vauxhall were proposing to make several hundred people redundant.
They sent all relevant information to the union, and also to the
DTI on form HR1.
Consultation proved successful in deferring the redundancies for
about 18 months. However, about 46 employees remained at risk of
redundancy. Vauxhall sent a new HR1 to the DTI in respect of those
46 employees, but did not re-notify the union or launch fresh
consultation.
The EAT agreed with the tribunal that s188 consultations were not
a "piece of elastic" which could stretch indefinitely through
time. However, overturning the tribunal, on these facts the 46
employees were a sub-set of the several hundred that the union had
originally consulted over, and therefore Vauxhall had fulfilled
its obligations under s188. Accordingly the decision granting a
protective award of 70 days' pay per employee was quashed.
Vauxhall Motors v TGWU
EAT Judgment
http://www.employmentappeals.gov.uk/uploads/UKEAT0657052222006/index.htm
20 March 2006
Late Response Form --> Costs
----------------------------
The EAT has handed down a decision which is likely to be used as
authority for the proposition that a Respondent who triggers the
need for a review hearing (because of not lodging an ET3 within 28
days) should pay the costs of that hearing.
The Respondent failed to lodge a Response Form, so the tribunal
ordered that it could take no further part in the proceedings.
The Respondent subsequently wrote stating that it had been subject
to a take-over, that it could not trace receipt of the Claim Form,
and asking for the Claim Form to be re-sent to them.
The tribunal treated the letter as an application for review, and
held that the Respondent had deliberately shut its eyes to the
claim (having been in pre-action correspondence with the
Claimant), and that's its denial of receipt was implausible. The
application for review was therefore refused without a hearing.
The EAT, whilst critical of the Respondent, stated that it was
wrong for the tribunal to refuse the review without, at least,
having a hearing.
However, the EAT ordered costs against the Respondent. In an
important paragraph (para. 34), HHJ Peter Clark held that the fact
the Respondent had failed to deal with the Response Form properly
led to the proceedings in the EAT which - technically - were
unnecessary. This warranted a costs order (which was not resisted
by the Respondent).
The wording of the EAT costs rules are slightly different to the
ET costs rules, allowing costs were an appeal is 'unnecessary'.
However, review applications triggered by late Response Forms will
probably fall under the 'unreasonable conduct' limb of the ET
costs rules - so expect this to become a standard authority to be
quoted in costs applications following successful (or, indeed,
unsuccessful) reviews of default judgments / decisions that the
Respondent can take no further part.
British School of Motoring v Fowler
EAT Judgment
http://www.employmentappeals.gov.uk/uploads/UKEAT0059062422006/index.htm
16 March 2006
Rolled-Up Holiday Pay Unlawful
------------------------------
This morning the ECJ handed down judgment in the rolled-up holiday
pay cases. The judgment is already being heralded - misleadingly -
as preventing rolled-up holiday pay.
Essentially, the ECJ has ruled that rolled-up holiday pay is,
prima facie, unlawful. However, if the holiday pay element of the
rolled-up payments is sufficiently transparent, the employer can
set off those payments against money due for the specific period
when leave is actually taken. So it actually makes little
difference in practice.
The ECJ considered three conjoined cases, one referred by the
Court of Appeal and two by the Leeds employment tribunal, namely:
* Caulfield v Marshalls Clay Products Ltd. (now Hanson Clay
Products)
* Clarke v Frank Staddon Ltd; and,
* Robinson-Steele v RD Retail Services Ltd
In its decision (which, unusually, departed from the Opinion of
the Advocate General), the ECJ ruled:
* employers cannot simply allocate part of an existing wage packet
to holiday pay. The holiday pay must be ADDITIONAL payment to that
made in respect of work actually done (para. 52)
* employers MUST pay holiday pay during the specific period during
which the worker takes leave. It is unlawful to stagger payment
over the year (para. 63)
* but if the employer does roll-up extra money in respect of
holiday pay, it can set-off the extra money already paid against
the payments it ought to make during the specific holiday period.
The burden is on the employer to prove the transparency of the
payment (paras. 68 and 69).
A storm in a teacup, really. The Court of Appeal said, back in
2004, that rolled-up holiday pay is lawful as long as the
rolled-up element is transparently set out (eg on payslips) and a
genuine payment in respect of holiday. The ECJ has now said that
it's technically unlawful, but that as long as it's transparently
set out and a genuine payment in respect of holidays, the payments
can be set-off, i.e. no loss for the employees and it doesn't
matter a hoot.
Incidentally, as I type this, the TUC has put out a press release
claiming the judgment is a great victory for the workforce. But it
really isn't - it's a technical victory with almost no practical
impact on existing UK law and practice.
Click here to read the ECJ decision in the three conjoined cases
http://digbig.com/4gwjg
Here is the Daily law Reports Summary:
Robinson-Steele v RD Retail Services Ltd (Case C-131/04)
Clarke v Frank Staddon Ltd;
Caulfield and others v Hanson Clay Products Ltd (Case C-257/04)
ECJ
16 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/ECJ/mar0.2.htm
The practice of paying employees their paid annual leave by
including a component therefor in each regular pay packet
("rolled-up holiday pay") was contrary to Community working time
Directive 93/104.
14 March 2006
Statutory Grievance Letters
---------------------------
The EAT has handed down another decision on whether a letter of
complaint from an employee qualifies as a statutory grievance
letter enabling an employee to bring a tribunal claim.
This issue was the content of the letter - did the letter raise
the same complaint as the employee was seeking to have determined
by the tribunal?
Elias P. has set out the following test (para. 25): "It seems to
me that the objective of the statute can be fairly met if the
employers, on a true reading of the statement and having regard to
the particular context in which it is made, can be expected to
appreciate that the relevant complaint is being raised."
On the facts, Elias P. held that the grievance letter, albeit
containing a variety of lengthy complaints about the employee's
health, did not raise an issue which an employer could reasonably
understand had arisen under the DDA 1995. Thus his disability
discrimination claim was not allowed to proceed.
Canary Wharf Management v Edebi
EAT Judgment
http://www.employmentappeals.gov.uk/uploads/UKEAT070805332006/index.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.
Cases from Industrial Case Reports
Agency
------
Lonsdale (t/a Lonsdale Agencies) v Howard & Hallam Ltd: [2006]
EWCA Civ 63
CA
8 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/mar0.2.htm
Agent entitled to full compensation for losses suffered when
agency terminated but it has to be properly assessed. "Article
17(3) of Directive 86/653 and regulation 17(6) of the Commercial
Agents (Council Directive) Regulations 1993 gave the agent the
right to full compensation for any damage that he had actually
suffered as a result of the termination of his relations with his
principal and not a right to a payment that was fair and
reasonable in all the circumstances of the case."
Working Time - Rest Periods and Minimum Wages For Staff on Call
---------------------------------------------------------------
MacCartney v Oversley House Management
EAT
31 January 2006
http://www.lawreports.co.uk/ICRE/2006/mar0.3.htm
Daily Law Notes Report Summary
The claimant, a residential manager in a home for people over 60,
had contracted hours of "four days per week of 24 hours on site
cover" during which she had to be on or near the premises, on
call, attending to the residents with whom she was in contact by
mobile phone, answering emergency and non-emergency calls or doing
administrative work in a small office in her flat in the home. She
received an annual salary of 8,750 GBP, paid monthly, and
rent-free accommodation. On successful appeal held she was
entitled to rest periods, time on call was part of her "working
time" and she was being paid less then the minimum wage.
Unfair Dismissal - Breakdown in Relationship
Between Senior Executives
--------------------------------------------
Perkin v St George's Healthcare NHS Trust: [2005] EWCA Civ 1174
CA
12 October 2005
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/mar0.4.htm
Trust's Director of Finance not unfairly dismissed after he
attacked honesty of colleagues at Disciplinary Tribunal. "A
breakdown in confidence between an employer and one of its senior
executives for which the latter was responsible and which actually
or potentially damaged the employer's operations or rendered it
impossible for the senior executives to work as a team could be
"some other substantial reason" for dismissal...."
Family
=======
Re X: Emergency Protection Orders
----------------------------------
Re X: Emergency Protection Orders
Fam Div
16 March 2006
BAILII Judgment
http://www.bailii.org/ew/cases/EWHC/Fam/2006/510.html
"At the time that the meeting concluded there was no suggestion
from the social workers, or any other professional attending the
case conference, that the child should be removed from her
parents' care – either immediately or at all. Within two hours of
the case conference concluding, however, the social work team
leader was giving evidence before a bench of lay justices in
support of an application for an Emergency Protection Order
('EPO'). That application was made without any notice to the
parents. The justices granted an EPO. At that time the mother and
child were at a local hospital, to which the mother had taken the
child for a check up because the child was complaining of
abdominal pain. The social workers, accompanied by four uniformed
police officers, attended the hospital and removed the child from
her mother's care. She was placed in foster care, in which state
she remained (with a number of changes of carers) for the
following 14 months under a series of interim care orders. In the
course of the hearing I investigated how such a Draconian order
came to be granted in a case which, up until that time, had been
one where low level intervention by way of assessment and
counselling had been the agreed plan. As a result of that
investigation I have found significant flaws in the manner in
which the system operated by the social services and the family
justice system itself impacted upon this family. There is in my
view a public interest in wide publicity being given to what took
place in this case in the hope that lessons may be learned to
ensure that what befell this family is not repeated elsewhere.
Mr Justice McFarlane goes on to give detailed Good Practice
Guidelines about EPO's.
General
=======
Video Games Bill
----------------
1 March 2006
Next reading: 12 May 2006
Keith Vaz (Lab, Leicester East) introduced a ten-minute rule
motion on the Video Games Bill in the Commons. The Bill aims to
amend the Video Recordings Act of 984, by extending certain
provisions of the Act to video games and aims to make provision
about the labelling of video games.
http://digbig.com/4gwjh
Government
==========
Budget 2006 - A Sign of the Times?
----------------------------------
HMRC Announcement
21 March 2006
A full listing of Budget documents will be available on our site
shortly after the Chancellor finishes his speech. Previously hard
copies of the Budget documents could be collected from the
reception desk at 100 Parliament Street, Westminster. These
documents will no longer be available.
So, you can only read the new rules if you have access to the
website! The Internet should be an additional resource, not the
only resource.
Here id the website:
http://www.hmrc.gov.uk/budget2006/index.htm
Immigration and Nationality
===========================
Forced Marriages
----------------
"No More Forced Marriages"
Home Office Press Release
16 March 2006
http://www.homeoffice.gov.uk/about-us/news/forced-marriage-campaign
A campaign to drive down the number of forced marriages has been
launched jointly by the Home Office and the Foreign & Commonwealth
Office. Over 250 cases of forced marriage were reported last year
to the Government's Forced Marriage Unit, with some of the victims
as young as 13 years old. The campaign launched today aims to
increase awareness of the issues surrounding forced marriage and
to publicise the support that's available for anyone affected by
them. Actors Meera Syal and Ameet Chana are supporting the
campaign which will involve a series of radio and press adverts,
TV fillers and poster campaigns.
Intellectual Property and Computers
===================================
Review of the Copyright Tribunal
--------------------------------
March 2006
The Patent Office is considering whether improvements could be
made in the way in which the Copyright Tribunal works. The
effecting of improvements may involve amendment to the Copyright
Tribunal Rules 1989 (as amended), consolidation of the statutory
instruments governing the workings of the Tribunal, revision of
the 1995 Practice Direction (as amended) and changes to the
general administration of the Tribunal by the Patent Office.
For more information go to:
http://www.patent.gov.uk/copy/notices/2006/tribunalreview.htm
Land and Environment
====================
New FAQ's for Prescribed Clauses Leases
---------------------------------------
Land Registry FAQ's
16 March 2006
http://www.landregistry.gov.uk/kb/Default.asp?ToDo=browse&catId=30
" We are automatically updating the 3.5 million existing leasehold
registers to change to the new regi... "
New SDLT60
----------
Inland Revenue SI
The Stamp Duty Land Tax (Administration) (Amendment) Regulations
2006
SI 2006/776
16 March 2006
http://www.hmrc.gov.uk/si/2006-0776.pdf
"This instrument brings in a new version of the Stamp Duty Land
Tax form SDLT 60 and provides for a transitional period until the
15th March 2007 when either the old or new forms can be
submitted."
A much more useful form than the current restrictive version.
Management of University Student Accommodation
To Be Improved with New Codes
----------------------------------------------
ODPM Press Release
16 March 2006
http://digbig.com/4gwjj
Students residing in accommodation managed and controlled by
universities and colleges of higher and further education, will
benefit from the Government's drive to improve management
standards of Houses in Multiple Occupation (HMOs), when provisions
in the Housing Act 2004 come into force after 6 April.
Government Timeline for Home Information Pack Reform Published
--------------------------------------------------------------
ODPM Press Release
16 March 2006
http://digbig.com/4gwjm
Key milestones for the Home Information Pack programmes are
published today, setting out what Government and industry need to
do to ensure that Home Information Packs are successfully launched
to consumers on 1 June 2007.
" * June 2006 - June 2007 a three phase approach to product
testing - that builds up to Government and industry testing across
all aspects of the process, involving estate agents, solicitors,
pack providers, lenders and others who play a part in delivering
Home Information Packs to consumers, from ensuring that
Certifications Schemes are up and running, so that Home Inspectors
can register Home Condition Reports, to offering voluntary packs
to consumers in advance of mandatory implementation."
Robust Dry Run Needed for HIPs
------------------------------
Law Society Press Release
16 March 2006
http://digbig.com/4gwjn
"It is encouraging that the government have listened to our call
for a robust dry run, but the timeline leaves very little scope
for that process. The industry and consumers need to be sure that
the benefits that the government claims will be delivered and that
the timetable allows any problems in the process to be rectified."
Revised Building Regulations to Tackle Climate Change
Laid in Parliament
-----------------------------------------------------
ODPM Press Release
15 March 2006
http://digbig.com/4gwjp
Revised building regulations that increase energy efficiency
standards for new buildings were laid in Parliament today. The new
measures taken together with changes to strengthen Building
Regulations in 2002 will improve standards by 40 per cent. Last
month ODPM announced a two thirds cut from the usual transitional
arrangements for the implementation of the revised Part L in order
to maximise the impact on climate change.
Legal Practice and Lawyers
==========================
Complaints Commissioner Uses Final Report to Voice Concern
Over Proposed Office for Legal Complaints
Bar Council Press Release
20 March 2006
http://www.barcouncil.org.uk/document.asp?documentid=3734&languageid=1
The outgoing lay Complaints Commissioner, Michael Scott, who has
fielded complaints about barrister for the last nine years, has
spoken of his concerns regarding the proposed new regulator for
the legal profession, the Office for Legal Complaints (OLC).
There is considerable scope in these proposals for greater delay,
confusion between the OLC and the Front Line Regulators and for
the loss of the real expertise that the Bar provides in the
analysis of complaints. I am worried that consumers will be worse
off as a result.
Solicitors Must Not Be Penalised for Failings of
Legal Services Commission
------------------------------------------------
Law Society Press Release
20 March 2006
http://digbig.com/4gwjq
The Legal Services Commission should not try to recoup legal aid
money allegedly owing in cases completed decades ago, as
solicitors' files have long since been destroyed. The Law
Society, the professional body for solicitors, is concerned that
its members are being penalised unfairly by the commission's
failure to reclaim money in a timely way.
HSE Interview Guidance
----------------------
Law Society Guidance
Friday 17 March 2006
This guidance is issued by the Rules & Ethics Committee of the
Regulation Board, on the 17 March 2006.
http://digbig.com/4gwjr
Is it ethically appropriate for solicitors who act for an employer
(either in house solicitors or solicitors in private practice) to
be present at the Health and Safety Executive's Inspector's
interview of an employee following a work related incident?
E-Business Newsletter – Issue 4
-------------------------------
Law Society Newswire
16 March 2006
http://digbig.com/4gwjs
This edition contains:
Information security guidelines planned for solicitors
Home Information Packs: Minister makes statement
HM Courts Service Business Strategy launched
DTI Information Security Breaches Survey results 2006
Security corner - strategies for keeping the bad guys out
Electronic Law Committee news
Information Technology and the Courts Committee (ITAC)
Shock As Partners in Firms Are Excluded From
Default Retirement Age
--------------------------------------------
Law Society Press Release
14 March 2006
http://digbig.com/4gwjt
The Law Society is urging its members to be aware that new
employment laws which come into force on 1 October apply to the
compulsory retirement of partners without any limitation. The
exception for retirement at 65 or above (the national default
retirement age) applies only to the retirement of employees, and
not to partners.
Litigation, Courts and Human Rights
===================================
New Civil Procedure Rules
The Register of Judgments, Orders and Fines Regulations 2005
------------------------------------------------------------
HM Courts Service Information
17 March 2006
http://www.hmcourts-service.gov.uk/news/forms/forms_0306.htm
These new rules which come into effect on 6 April 2006 and cause a
number of form and leaflet changes. The new rules and regulations
provide for: -
* The mandatory provision of a postcode for any address supplied
to the court by the parties
* Details of the information that must be provided on a claim form
* The provision of the defendant's date of birth on reply to a
claim or on entering judgment
* The Register of Judgments Orders and Fines will replace the
Register of County Court Judgments
Money, Property and Tax
=======================
Pensions A-Day: 10 Key Facts You Need to Know
---------------------------------------------
Inland Revenue Press Release
17 March 2006
http://www.gnn.gov.uk/Content/Detail.asp?ReleaseID=191601&NewsAreaID=2
On 6 April (A-Day), new simplified rules come into effect around
how pensions are taxed, offering simpler and more flexible
retirement arrangements. This is what you need to know!
Money Laundering - Third Directive On Its Way
---------------------------------------------
STEP Article
February 2006
http://www.step.org/attach.pl/1142/2410/STEPextrasamplestory.pdf
All trust and company service providers within the EU will be
affected by the Third Money Laundering Directive (3MLD), and there
will be implications for providers outside the EU in dealing with
EU-based clients. Importantly it will also have considerable
implications for all trustees (whether inside or outside the EU)
doing business with anyone who is subject to 3MLD.
Clearer Pricing Information for Online Supermarket Shoppers
-----------------------------------------------------------
OFT Press Release
16 March 2006
http://digbig.com/4gwjw
Supermarkets offering grocery shopping online have agreed to give
customers better price information, following action by the OFT.
Asda, Sainsbury, Tesco, Waitrose (see note 1) and Ocado (see note
2) have agreed to provide clearer information about their online
pricing after the OFT received complaints from customers that the
prices charged for groceries on delivery were different from those
advertised on the websites.
Personal Injury
===============
Duty of Care
------------
Butchart v Home Office [2006] EWCA Civ 239
CA
15 March 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/mar0.8.htm
A claim for damages by a prisoner for psychiatric harm, alleging
that he himself was in a depressive and suicidal condition and
suffered injury as a result of being incarcerated by prison
authorities with a fellow prisoner known to be a suicide risk,
whose body following his suicide was found by the claimant and
whose death a prison officer blamed on the claimant, could be made
since the question to be determined was whether the facts were
sufficient to show the authorities owed him a duty to take
reasonable steps to prevent him suffering harm.
Cases Generally
===============
Image:
http://www.lawindexpro.co.uk/g/f00.png
lawindexpro - As Good As Ever
-----------------------------
Now with 104,846 cases indexed (with over 72 added in the
last week even while he's having a few days off!) and over 237,669
references.
David Swarbrick continues to expand the usefulness of lawindexpro.
He has now started a Forum section with a number of different
areas for raising questions, making comments and generally trying
to create a community on line for hard-working lawyers. David
will moderate the site - he seems to live a 25 hour day!
Try it for yourself:
http://www.lawindexpro.co.uk/cgi-bin/yabb2/YaBB.pl
No other research site is so powerful for such a low price. David
is happy to provide subscribers to UKlawyers with a brief guest
account to test the service.
Ring 01484 717380 or 0773 187 4426 to subscribe or enquire.
"More Cases, More Courts, More Years, More Use"
Go to:
David Swarbrick's lawindexpro - http://www.lawindexpro.co.uk/.
Yoga Section
============
Yoga
----
I have been practising Yoga for almost three years now and can
recommend it as a way to become flexible and fit and as a way of
relaxing. The secret is to keep up the practice but even when you
lapse, as I do, it is amazing how quickly you get back into it.
Here is an interesting article from the BBC World Service
including a 24 minute recording of a radio programme about one of
the world's most famous gurus: B K S Iyengar.
http://www.bbc.co.uk/worldservice/people/highlights/010116_iyengar.shtml
Be warned: 'It's a disciplined subject – a casual attempt only gains casual results.'
Here is his official website including pictures of the various
asanas:
http://www.bksiyengar.com/
Oh What Lovely Law!
===================
The computer game Civilization IV has recently been issued and
received rave reviews. I have not yet bought it because my
computer is not up to spec but that will change soon, no doubt. I
have played all the previous versions with the glee and guilt of
an addict and recently renewed my acquaintance with Civ III much
to the detriment of my garden. One feature which it has is a
Civilopedia which contains its unique perspective on trends in
Civilizations. I thought the curious might enjoy the following
definitions:
Courthouse
----------
The Courthouse decreases corruption in its city and makes the city
more resistant to propaganda.
Courthouse
----------
As kingdoms and empires expanded, it became increasingly difficult
for the rulers to maintain control over the more distant regions
of their realm. To ensure that the far-flung cities of the empire
contributed their expected share of duties and taxes to the
government, local magistrates and courts were established. In the
courthouse, the ruler's representatives listened to the grievances
of the people and defined and enforced the laws that governed
social interaction. This reduced crime, and thereby kept the local
population productive.
Code of Laws
------------
The earliest tribal civilizations were bonded together by mutual
needs and beliefs. A tribal chieftain, who acted as an advisor and
enforcer of the will of the gods, ruled these groups. No formal
laws existed in these early cultures, but fear of the gods and a
sense of tribal customs and morality kept order in the tribe. As
societies became larger and more diverse, the need arose for
established rules of conduct. The earliest known codes of laws
existed in Babylon, India, and Palestine. The Twelve Tables of
Rome, written in 500 BC, and its successors such as the Justinian
Code, were the first codes of law to distinguish between public
law, which involves the state, and private law, which concerns
disputes between citizens. Roman law was the first formalized
written system of laws, and went on to influence many of the legal
systems of the modern world.
For the full text of the Civilopedia, go to:
http://www.baare.com/civilopedia/civilopedia_home.html
For the new game (which even sounds fantastic!), look at:
http://www.2kgames.com/civ4/home.htm
Legal Practitioner
==================
More useful material from Consilio:
Litigation
----------
"Limitation" by Dr John Birchall
http://www.spr-consilio.com/art091.htm
Limitation is an area of procedural law which every solicitor -
ideally, every professional advisor - needs to understand. It
affects professionals would not claim expertise in litigation. If
it is possible that time is getting tight for a possible claim,
non-litigators (be they solicitors, or medics, or accountants, or
whoever) need to be able to spot the risk of a limitation issue,
so that they can seek advice from litigation specialists without
delay.
Equity & Trusts
---------------
"Trustees in Breach of Fiduciary Duties"
A Case Note by M.Ramjohn
http://www.spr-consilio.com/arttrusts7.htm
Principal Lecturer at Thames Valley University, Barrister JP
Myatt V Browne [2005] All ER (D) 276, High Court
Trustees who sold trust property at an undervalue to defendants
who colluded in the breach.
Any feedback is welcome, positive or not - we do listen and learn.
Regards
Steve
DISCLAIMER
==========
The information and any commentary on the law contained in
this bulletin is provided free of charge for information
purposes only. Every reasonable effort is made to make the
information and commentary accurate and up to date, but no
responsibility for its accuracy and correctness, or for any
consequences of relying on it, is assumed by Joe Reevy, Steve
Butler, or uklawyers.co.uk. The information and commentary
does not, and is not intended to, amount to legal advice to
any person on a specific case or matter. You are strongly
advised to obtain specific, personal advice from a lawyer
about your case or matter and not to rely on the information
or comments in this bulletin or, if you are a solicitor, you
should check the accuracy of the information yourself, or seek
advice from Counsel on a formal basis. This Newswire may be
freely reproduced provided that appropriate accreditation is
given and so long as you do not to distribute it or any part
of it for commercial purposes.
Subscription Information
========================
To subscribe to this newswire,
send an e-mail to:
mailto:smb@e-solicitors.co.uk
and include your first and last names.
To unsubscribe: send an e-mail to: mailto:smb@e-solicitors.co.uk
and include the instruction "Unsubscribe Me" in the subject line.
Remember, it is very easy to make an error with your e-mail
address - our mailing software rejects defective addresses
automatically, so please make sure you get your address right.
Please not that to CHANGE your e-mail address: it is necessary to
de-register and re-register. If this is too much effort, just
tell us your new and old e-mail addresses and we'll do it for you:
mailto:smb@e-solicitors.co.uk
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
uklawyers.co.uk
9, Howell Rd.
Exeter EX4 4LG
Devon
United Kingdom
E-mail: mailto:smb@e-solicitors.co.uk
© S M Butler & J Reevy 2006
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~