Re-possession of residential property has just got a whole lot faster with our new, fixed fee Accelerated Possession service.

Thats it.

You blinked?

You missed it.

A question for you:

“Would you sell your right to vote for £750?’

No? I thought not.

Nor would I.

Nor, I suspect would the thousands of British voters who, on Thursday night, had the doors to the Polling Stations slammed in their faces up and down the country, after using best efforts, for most of the day, to exercise their constitutional right to vote.

Their extreme outrage and noble indignation was piteous to behold.

It seems fairly clear that these unfortunate Britons, disenfanchised by administrative incompetence, in more than 14 constituencies and in 8 major cities including, London, Sheffield and Birmingham, do have a legal right to claim compensation.

Article 3 of the First Protocol to the European Convention on Human Rights records the individual’s right to participate in fair and free elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’.

That would at least seem to presuppose that you get let into the Polling Station before closing time and handed a ballot paper.

This principle is enshrined as a ‘Convention right’ by section 1 of the Human Rights Act 1998 , section 6 of which provides that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’.

An electoral law that dictates that people can only vote at a single location, and only before 10pm, presupposes that the public authorities whose job it is to ensure the system works will provide enough staff and resources to ensure that all who wish to vote can do so. If, as on this occasion, they fail so miserably to do so, they are liable for infringing the ‘Convention right’ of thousands of would-be voters who, in spite of their best efforts, were unable to vote.

So far, so good.

The question is what level of compensation would it be proper and appropriate to award to those voters for the flagrant breach of their rights that they have thus suffered?

It would have been interesting, if not instructive, to put this question to the drenched and serried ranks of anguished voters whose right to exercise their vote on Thursday was so effectively thwarted by grievous maladministration

…I doubt that ‘up to £750′ would have been a typical answer!

(Incidentally, the annual budget of the Electoral Commission is about £25 million. What do you think they spend it on?).

Eminent, if informal, legal opinion (eg Geoffrey Robertson QC, Lord Pannick), has apparently, upon journalistic enquiry, put it variously at ‘up to £750′ or ‘at least £750′.

Surely, the loss of the right to vote is worth more than that, if it is worth anything?

The opportunity to vote, once stolen, is irretrievable. Surely, one’s vote is priceless.

People have died for the right to vote. People still are dying in Iraq.

That a British voter should be prevented from voting in any election is unacceptable. That it should happen in 2010 during the most momentous election in living memory, in a country described by John Bright, in 1865, as ‘the Mother of Parliaments’, and at a time when the British military is fighting in Afghanistan and Iraq to uphold the principle of democratic rule, is a bitter irony of the kind to which it seems Britain has now become almost impervious.

The impromptu witterings of the Returning Officers button-holed for ‘News and Ten’ and the embarrassed excuses of the Electoral Commission only served to intensify the outrage.

If these voters decide to pursue claims for compensation, as surely they must, the question ‘what price the vote?’ will soon fall to be judicially decided.

I, for one, hope that the judges will err on the side of outrageous and punitive generosity. Perhaps in this way the message that certain things like the right to vote are sacrosanct will be clearly heard, as will the message that a half-hearted and complacent approach to discharging one’s public duty is no longer acceptable and, anyway, does not pay.

Section 8 of the Human Rights Act 1998 provides that compensation for breach of a Convention right should be decided using the approach established by Article 41 of the Convention itself, namely the principle of ‘just satisfaction’.

The problem is that the European Court of Human Rights is surprising mean in awarding damages for ‘non-pecuniary’ loss such as the mental anguish suffered by those voters who were so rudely disenfranchised last Thursday.

In its Practice Direction it declares that assessing  ’non-pecuniary damages’ for ‘non-material harm’ does not lend itself to precise calculation.

However, it does go on to invite applicants who wish to be compensated for non-pecuniary damage ‘to specify a sum which in their view would be equitable’.

Okay. Right.

I have to say that if, on Election Day, I had tried, throughout the day, to cast my vote and had thereafter joined the queue at 7pm and queued in the pouring rain for a further 3 hours only to have the Polling Station doors slammed in my face at 10pm, or told that I could not vote becuase they had run out of ballot papers, I would not be thinking in terms of £750. More like £750,000!

If any court had the gall to award ‘up to £750′ I would be filing appeal papers with the European Court that same hour.

For shame, England! For shame!

Volcano alert!

All hands to the pump!

etc, etc ……but can travel businesses suddenly ask their staff to work around the clock to cope with the huge upsurge in business?

As the ash clouds from the Icelandic volcano slowly disperse, the rail, road and sea ferry industries have been working at full steam (pun intended) to take advantage of the extra business. This means that employees are suddenly being asked to work greatly extended hours with inevitable legal implications under current employment law.

If employees are asked to work in excess of their contracted hours, they can simply refuse to do so, and their employer can’t do much about it. Changing contract terms without employee consent could entitle employees to resign and claim constructive unfair dismissal or wrongful dismissal for breach of contract.

Offering impromptu financial incentives, such as overtime and bonus payments, is the immediate and obvious practical way to get employee ‘buy-in’ to consent to the increased working hours. However, with some forward planning, it is possible for employers to include contractual provisions to cover a sudden, unexpected requirement for extra work in the future.

For employees who are asked to work more than the average 48-hour week and who have not already opted out of the Working Time Regulations, employers must keep careful records to be able to calculate just how may hours are being worked. As the average for the Working Time Regulations is calculated over a 17-week period (and can be argued to be over a 26 week period in this special situation), employers are unlikely to be caught for claims on account of breaching the Regulations by the current volcano situation but may still be required to produce their records in such circumstances.

Again, forward planning may include asking employees to opt out of the Regulations at some point in the future but they cannot be obliged to do so.

Employers must also be mindful of Health and Safety implications for over-worked employees and must ensure that, regardless of the over-time worked, employees are afforded all statutory rest breaks including the minimum provided in their existing contract of employment which, for most employees, must not be less than 20 minutes rest every 6 hours, 11 hours rest in every 24 hour period, and either 24 hours rest each week or 48 hours rest each fortnight. As breaches of health and safety laws can result in personal criminal liability for employers it is vital that, despite the extra hours required, employee’s health and safety is never put at risk.

What about the legal position of employers whose staff are stuck sunning themselves in the Canaries and are unable to get to work?

Employers who deduct pay or insist the time is taken as extra holiday, may receive claims for unlawful deductions from wages.

Employers must try to avoid using their discretion or making decisions on a case-by-case basis as claims may arise for indirect discrimination if decisions are arbitrary or applied inconsistently.

Employers therefore should ensure that they use reasonable and clear communication with those employees burning the midnight oil and those in far off lands buying extra tanning oil.

It may be a good time to consider updating employment contracts generally, to have provisions in place for such situations, not least because the unpronounceable Icelandic volcano isn’t finished yet ….. but then we would say that wouldn’t we.

by Victoria Russell, Employment Law Solicitor

Welcome to the Blawg Review #243 from a sunny, snow-covered London.

Fighting Back: A Festive Meditation for Lawyers

The Physical Unverse tends towards chaos and dissolution …the Moral Universe towards injustice and despair ….the Legal Universe, for surely such a dimension does exist, towards obfuscation, misdirection and delay.

But there is a contrary principle.

…the Light shines in the darkness and the darkness comprehends it not.

So let us declare this contrary principle that it may burn ever brighter and more unquenchable in the minds and hearts of all who practise the Law. 

Let us, as lawyers, on the eve of the proximate festivities, at the threshold of another year, and as the destructive tide of the 2009 Recession begins to turn, celebrate and magnify all those amongst our number who, in the practice and profession of The Law,  ….FIGHT BACK! 

For should not the steely and dogged courage and determination to fight back, often in the face of overwhelming odds, often in total default of resource and often when the very capacity to fight has itself been exhausted, be the distinguishing hallmark of our profession?

The case is bad. The facts are poor. The evidence is not there. It seems a forlorn endeavour. It seems a hopeless cause.

No matter. We will fight. We will fight back. We are fighters to the core. We have no choice. We must oppose to overcome. We will keep alive the intermittment spark of hope. Whatever the cost. However long and hard the fight may be.

As @London_Law_Firm, I am known to figure the epigrammatic inspiration of Winston Churchill in my sporadic tweetings. I make no apology for this.

That I am a Scholar of Churchill College, Cambridge University, is irrelevant. That I live a few minutes drive from the Churchill family retreat at Chartwell in Kent is purely incidental.

I would tweet Churchill anyway …because he fought back. Big Time.

He fought back when all hope was already extinct; when the British Parliament had already been bombed to rubble; when defeat and death had already taken up residence in men’s hearts; when there was no rational basis upon which the fight should continue.

When he was an old man ….still he fought back.

The legal blogosphere fairly rings with fighting spirit this week.

Ilya Shapiro, illustrious and ambitious champion of Individual Liberty, Free Markets and Peace, fights back this week against the constitutional dangers of vague laws arguing nobly and persuasively in the context of a Supreme Court review of ‘honest services fraud’ charges against Enron CEO, Jeffrey Skilling, that due process requirements of fair warning and definiteness apply equally in the contexts of white collar business crimes, business torts, and civil regulations. Tim Lynch also takes up the legal cudgels against the dangerous trend of overcriminalization in US federal law. Keep fighting, brothers.

John A Flood fights back characteristically with humour against the fact that all UK lawyers will soon be required by the Legal Services Act 2007 to be Superman (”Here’s my card, sweetie. I also happen to do a bit of lawyering on the side”). Now, in very truth, all UK lawyers must fight like super-heroes as the UK market for legal services undergoes virtually total deregulation. We say, ‘Bring it on’!

For another great example of a lawyer who is fighting back heroically against the devastating forces of natural disaster and political conflict, look no further than my twitterfriend, Thomas P Valenti, Member of the Board of Mediators Beyond Borders, fighting back undaunted against the consequences of Hurricane Katrina, Climate Change and the political tensions in the Middle East. Thomas it is a privilege to know you.

Brian Inkster is another lawyer who is fighting back, in true Churchillian spirit, this time against homelessness in Argentina….and not just by raising a phenomenal amount of money for the Habitat For Humanity cause. He actually carved time out from his busy and successful law practice in Scotland to go to Argentina himself and get building with his own bare hands, complete with hard hat and impressive boots that he broke in by wearing them to the office before he went. You can read the whole story of the fight from the links on yesterday’s Argentina compendium blog-post. To The Noble Inkster (aka ‘Lord of the Dance’), we say …..

…keep on dancing, brother!

No legal blog on the subject of ‘fighting back’ could hope to be complete without inclusion of the UK Legal Blogmeister himself, CharonQC who copiously and continuosly wrestles with all manner of subjects, some of whom are known to be perfectly law-abiding citizens. Most recently, he continues his trenchant commentary on ‘Trafigura‘ who have, ironically, extracted £25,000 from the BBC, for apparently straying wide of the mark on the subject of causation, a topic generally best left to lawyers. His most excellent podcast on Trafigura filled an otherwise futile 20 minute wait at the Bluewater checkouts recently whilst my eldest son attempted the purchase of exactly the right  kind of hot water bottle. 

Charon has recently taken up the fight against the pretentiousness of the contemporary art scene…a battle from which he has alreay emerged the victor with his revolutionary new concept, F**Kart ……Another Rioja? ….A la tienne!

‘Snow White Snorts Snow’ – Charondigliani

From the sublime to the subject of re-insurance and a particularly interesting blog by Philip J Loree Jr of Loree & Loree who is fighting back to ensure that the limits of arbitral power are kept within proper bounds. Fight on, brother.

Fighting back with both tactics and strategy is that mighty martial foe and quick-witted twitterer The Trial Warrior whose highlighting this week of some state-of-the-art (of War) thinking on forum and jurisdictional issues typifies his declared belief that: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” (Sun Tzu). Antonin I Pribetic has turned ‘fighting back’ into a noble art form of which he himself is a supreme embodiment. Fight on, oh quick-witted One!

The Efficiency Coach fights back this week against poor delegation skills in law firms . Quite right, Heather. Quite right! Fight on!

Fighting back is a mind-set whether you are One Minute Lawyer fighting back against the routine shackling of young offenders, Criminal Defense Lawyer fighting the 14,000 illegal US consumer scams or Lemon Law Court fighting against, well ….lemons.

Maternal generosity does not normally provoke a major legal battle unless, of course, the mother is, Liliane Bettencourt, heiress to the L’Oreal fortune and one of the richest woman in the world and the generosity involves gifts totalling over a billion dollars. Andrew Mayoras in The Probate Lawyer Blog records the permission granted to Bettencourt’s daughter by a French Court to press criminal charges against the recipient of such lavish generosity and also to subject her mother to a medical examination on the assumption, presumably, that she must be deranged. It will be interesting to see how effectively the donor fights back in defence of her generosity. Nowhere is the ability to get up and fight back more necessary than in the growing field of UK contested probate work.

Illinois law firm, Levin & Perconti record the legal fight of Linda Kaiser that resulted in the product recall of 50 million roller blinds and window shades after the tragic death by strangulation of her baby daughter in 2002. She thought it was just an accident until she discovered many similar tragedies. She could not but fight back and she did.

The recent fight back in Brent, North London by a Jewish family against the attempt by the Jewish Free School  to exclude their 12 year old son on the grounds that his mother had converted to the Jewish faith at a ceremony conducted at a progressive synagogue is highlighted by Law Less Ordinary along with the Supreme Court’s exhortation that all UK faith schools must now operate strictly non-discriminatory policies.

Some fights are eternal.This week @Clarinette02 fights back against Google’s apparently increasing disregard for the principle of personal privacy. With tenacity and gentle irony, she debunks the arrogance of the “If you have nothing to hide, you have nothing to fear” argument. We don’t have doors and curtains to preserve our shame, but to retain some vestige of privacy. Google’s pre-eminent position as garnerer of our virtual lives is ever open to hackers, over-zealous government investigators and simple accident whatever the policy of Google may be…and that policy seems to remain frighteningly ambiguous. (..Have you found this blog yet, Googlebot?). Fight on, Tara, fight on!

This week, The AM LAW Daily fights back against a seasonal menace. A flying champagne cork travels at 60 mph. Tipsy lawyers are unlikely to blink in time. Here you will find advice about how to defeat Seasonal Champagne Cork Blues.

Neil Worral, guest blogging this week on The Barrister Blog fights back against the ‘conkers-in-goggles’ ‘elf ‘n safety gorn mad brigade. On balance, he says, over-regulation in the filed of health and safety is not prevalent.

Jonathan Mitchell QC fights back against holiday boredom with a 12 question legal quizz (Question 12: Which court sustained the refusal of a bank to replace a banknote allegedly eaten by the claimant’s cat?). There is a bottle of claret in it for the winner but wrap up warm ….because it is snowing on this site.

@ABeautifulMind1 is not just a beautiful mind. Although not yet sporting a blog (it will be a good read when she does!), she deserves a very special mention as a lawyer who has been fighting back in difficult circumstances and with admirable tenacity against a major UK bank. The bank will lose, of course. Her tenacity has recently yielded good news indeed. Follow her and learn.

Stephanie West Allen (Idealawg) is fighting back this week against the lack of creativity amongst lawyers. For reasons that we must presume are purely professional, she wants us all to dress up as fire-fighters. Result! Now our clients will be able to swoon when they first meet us and not wait until they get the bill. The idea is clearly catching on in London where I have just today seen a fire engine being driven by a team of perruqu’d barristers who are obviously celebrating creatively at the news that they can now be marked up and charged out at a profit and even take their own court bookings online.

Rees Morrison fights back this week against too much information-gathering and not enough intuitive thinking in law departments. This must be right, I feel.

Sam Hasler fights back against the incipient danger of The Stray Text Message.

China Law Blog fights back against ineffective food safety regulations in China in spite of a new Food Safety Commission and Richard Goldfarb on Food Liability Blog fights back against ‘bagel-related injuries’ and, the more prevalent, ‘chicken-related injuries’.

So should we celebrate all lawyers who fight back, in matters great and small, personal and professional. It is an art. We should cherish it.

We live in a strange Universe where lawyers can fight and beat dentists, funeral directors and, surprisingly, catwalk models.

Lawyers are marginal victors over a wet Sunday in London but in the perennial fight between lawyers and a night in with a good book, the solitary night in with a good book wins the contest convincingly.

We should not be too upset about this.

In a world defined by conflict and struggle, we must choose our battles well.

May God bless and sustain all those who fight back, on every level, and in every walk of life, against confusion, evil, injustice, lack, stupidity, oppression and the arbitrary exercise of power and let us, as 2009 draws to a close, recognise and celebrate our own role in that struggle.

Lawyers who fight back will triumph over oppression and injustice. Let us be in no doubt about this.

May I take this opportunity to wish you a peaceful and joy-filled winter respite and a prosperous and sucessful 2010.

Thank you for allowing me to host this Blawg Review.

Blawgreview has information about next week’s host and instructions how to get your blawg posts reviewed in upcoming issues.

Author: Chris Sherliker

Picture the Scene

Our defendant clients had been involved in long-running proceedings involving complex copyright issues.  There were 10 parties involved in the proceedings some with cross claims against each other.

The legal issues were numerous and complex and the contentions that would have to be determined in court included: Who was the true copyright owner? Had there been joint authorship? Had there been copying? If so, what was the precise extent of the copying? Was similar ‘look and feel’ enough to establish copying? To what extent did the judgment in Navitaire Inc –v- Easyjet (No3) 1725 (Ch) (2005) ECC30 impact on the issues? The question of the personal liability of directors for any infringements by their companies would also have to be adjudicated as well as some very opaque issues of fact.

The parties had been in battle for 5 years and the proceedings on going for approximately 18 months. The proceedings had reached a critical point and it was expected that in 12 to 18 months time there would be a 10 to 15 day trial.

The High Court granted a stay of proceedings to permit the parties to try to resolve their differences by mediation.

The Outcome

At the outset, the Mediator (himself a highly-respected copyright barrister) commented that it was impossible to predict the outcome if the case went to trial as there were at least 64 possible permutations.

It was a long and difficult mediation lasting 15 hours and at which, it can be reliably said, the parties aired their views, and it in the end it produced a resolution that all of the parties could live with.

Had the matter gone to trial, there would probably have been a judgment in favour of some and against others, but it is unlikely that there would have been any clear outright winners.

A little bit of “thinking out of the box” at the mediation meant that the solutions adopted by the parties resulted in a settlement agreement that gave something to everyone. Most importantly from our clients’ point of view, there was no longer a threat of an injunction that might have constrained their business and overall the parties came out of the mediation with honours shared.

The estimated costs to the parties to take the proceedings from the point they were at to trial, £250,000 to £300,000. The cost of the mediation was somewhat less than one-tenth of this figure.

It was a “no brainer” as they say.

The Dispute Resolution Team:

John Abbott:   jca@silvermansherliker.co.uk    
Richard Pearlman: rhp@silvermansherliker.co.uk
James Robertson:  jvar@silvermansherliker.co.uk
Stefan Arestis:  sa@silvermansherliker.co.uk
Asil Albayaty  aa@silvermansherliker.co.uk

As of Monday, injured feelings will cost UK employers a lot more!

Employees who are unfairly dismissed, particularly in discrimination cases, often get an ‘injury to feelings’ award.

The case establishing the principle was the well-known 2005 case of Vento -v- Chief Constable of West Yorkshire Police.

There has been considerable debate since 2005 as to whether an ‘injury to feeling’ award should be index-linked to allow for inflation. Employment Lawyers have assumed they should be and their views have been confirmed in the Employment Appeal Tribunal case of Da’Bell -v- NSPCC which has just been decided in past 2 days.

The compensation bands for ‘injury to feelings’ award are now :

• lower band:     £ 6,000
• middle band:  £ 18,000
• upper band:    £ 30,000

So employers should be very careful not to upset anyone.

Conversely, if you do get fired…..make sure you are really upset about it!

This developmentshas significant ramifications, not just for those currently fighting tribunal claims but also for those who are advising on compromise agreements where an element of compensation is being ascribed to injury to feelings.

Clearly there is now a lot more to fight for!

As this judgment has been handed down, it has immediate effect despite the transcript not yet being available.

Full marks! Dangerous, Invincible and Bad…but at least the King of Pop made a Will  …though it hasn’t stopped mother Katherine Jackson, allegedly egged on by father Joe (totally ignored in the Will ), from mounting a legal challenge and contesting a will that leaves everything to The Michael Jackson Family Trust.

She is seeking to wrest control of the USD500 million estate from the executors appointed by the Will, notwithstanding a ‘no contest’ clause in the Will that disinherits any beneficiary who challenges its validity or its terms.

It will no doubt be a thriller and there will be blood on the dance floor at the end of it all.  Ho, Ho.

In the UK the number of people contesting a Will is rising steeply. In the last 2 years the number of cases coming before the Courts has apparently risen threefold.  Our own experience, bears out the trend. Our Private Client Unit launched a free Contesting A Will legal advice service last week and has been inundated with enquiries.

This is due to a number of identifiable factors including the increasing number of long-term ‘common law’ marriages, the number of people relying on cheap and inadequate ‘DIY wills’, successive remarriages leading to rival clans of children, avarious second wives and husbands, the increasing value of estates due to rising property prices and the increasing number of people leaving all of their estate to charitable or political institutions.

Increasingly, people are contesting a will on the grounds that the testator may not have been of sound mind or have had ‘testamentary capacity’ when making the will.

Notably,  a will was successfully challenged last year on the basis that the deceased had left all of his £8 million estate to the Conservative Party. One assumes that the court did not take that to be evidence in itself that the testator must have been delusional when he made the will and that the case wasn’t won on ‘res ipsa loquitur’ argument.

The courts are showing increasing willingness to order that the costs of cases contesting a will should be paid out of the estate itself or shared between the parties and the increasing availabilty of legal costs insurance cover and conditional fee agreements means that fewer would-be litigants are deterred by the costs risk of launching a legal challenge.

The Moral being …make a proper will …unless you want the entertainment to continue after you’ve gone!