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Human Law Mediation Blog: Recent Posts

Friday July 25, 2014 at 7:53am
It has been recently reported that sacked Haringey Children's Services Boss, Sharon Shoesmith secured a  payout of more than £600,000

There is a confidentiality agreement in place but according to the Guardian the sum includes £217, 266 in compensation for loss of office and £377,267 for salary, fees and allowances.

This followed the conviction of, Peter Connelly's(Baby P) killers, triggering one of the biggest child-protection controversies of recent years.

Peter, who was on Haringey's child-protection register, died after months of abuse. His mother, Tracey Connelly, her boyfriend, Steven Barker, and his brother, Jason Owen, were convicted in November 2008 of causing or allowing his death.

A financial settlement between Haringey and Shoesmith was agreed last October but the sum was not disclosed.

It is worth reflecting that one of the key reasons why Ms Shoesmith was in such a strong legal position was due to the sheer trigger happy conduct of Mr Ed Balls who effectively removed Miss Shoesmith from her statutory role at Haringey with no warning and flouting the most basic legal procedures.

Mr Balls was Children's Secretary at the time of Ms Shoesmith's sacking.

What I do find pretty shocking is that Mr Balls who is a would be Chancellor next year said this week that whilst he was "frustrated" by the court's ruling, he said that he would make the same decision again.

He is reported to say "I had a duty to children in Haringey and across the country to act. It was my judgment that that was the only way to keep confidence in children's services."

It is great to know that someone does not care too much if he saddles the tax payer with more than £600k of damages to an employee.

To boot, the council previously revealed it had spent £196,000 on legal costs fighting Shoesmith's appeal.

Expensive stuff.

But dealing with Ms Shoesmith's figures, why were they so high bearing in mind that the claim for unfair dismissal is capped at compensatory award: lower of £76,574 or 12 months' gross pay?

One of the key reasons why Miss Shoesmith was be entitled to such a high pay out was because she obtained what are known as McLaughlin damages, due to the fact that the decision to remove her from her post was held to be void.

A McLaughlin-type order refers to an order made by the Privy Council, where it declared that an employee’s purported dismissal was ineffective in law to end his tenure in office and so he was “entitled to recover arrears of salary and payment of pension contributions until he resigns or his tenure of office lawfully comes to an end”.

Since Ms Shoesmith never received formal notice, unless and until she either gave notice herself or notice was given to her, she remained in post and continued to be paid as such.

It is amazing how creative some of us lawyers can be to obtain awards for our clients....
Tuesday July 22, 2014 at 2:11pm
In the aftermath of the plane crash that killed all 298 people aboard Malaysia Airlines Flight 17 on Thursday 17th July,  it is worth considering that beyond all the grief,  the victims’ families and countries are likely to being drawn into a lengthy court process.

My mind is taken back to the Lockerbie bombing and the fact that it took more than 20 years for the victims to obtain compensation.

With all the journalists and politicians grandstanding, you do wonder how effective they will ultimately be. I suppose obtaining some compensation is better than none.

Whether there is actual justice is another matter. Jim Swire who took a high profile after his  23 year old daughter died at Lockerbie became convinced that the convicted Libyan bomber was innocent.

Dealing with the money,  the airline will be the initial focus from the grief strucken passangers. I have read that initial mandatory pay outs are virtually guaranteed to approach $50 million with of the Montreal Convention, which governs the rights of passengers in international travel. Apparently Malaysia Airlines automatically will be responsible for about $150,000 per passenger.

For Malaysia Airlines to avoid liability beyond the initial pay out mandated as part of the Montreal Convention, it will have to prove that it was not only following international airspace protocol but also that it did everything in its power to protect its passengers.

Although the airline was minding its own business — it was flying in international skies, 1,000 feet above the 32,000 feet claimed as official Ukrainian airspace, it will be legally vulnerable as  it was widely known that three military planes had been downed in that airspace.

Despite all of this, the quest for justice may be determined by  the airline's insurance Allianz and Atrium.

If the airline is sued and both pay out, they could probably would pursue a right of subrogation against either Ukraine or Russia, which means it would pay Malaysia Airlines for its liabilities, and the country responsible would be sued for those expenses.

Even if the separatists or Russians are found to be at fault, that does not  mean reparations will be forthcoming. t's unlikely that claimants would collect any money from the separatists. The Russians probably would not even turn up to Court.

As one lawyer said on the issue  "Anybody can sue anybody they want, but that gets you some headlines for a day or two and then frustration for years."

Depressing stuff.
Monday July 7, 2014 at 9:17am
I am currently doing some work with a leading brand and helping to advise their elderly clients on their key legal issues.

One of the issues which is of primary concern is how to avoid liability for care fees.

The issue is getting a lot of attention with the implementation of the new Care Bill which has introduced a cap on care fees of £72,000.

However anyone who has scrutinised the Bill knows that it  may  take almost five years for elderly people to hit the cap, which will be introduced from April 2016, during which time they could have spent more than £150,000 on the costs of care. Indeed, the Institute of Actuaries even bandies the figure of £250,000 though this number may be too high.

The reason for such high numbers is because the cap does not cover accommodation and living expenses, and care costs only count towards the limit at the rate the local council would pay for a place in a residential home.

Therefore the cap of £72,000 is a mirage.

Therefore you still have a lot of people concerned over care fees.

Yes, you can take avoidance measures but the thing to bear in mind is that if you do not pay privately for care fees you put yourself in the hands of the local authority e,g you lose choice.

If you still wish to go down the avoidance route, you can get a life time interest trust where you put your home into trust or you can do other things in your will such as giving your share of your property as a distinct share to your children with a lifetime living interest to the surviving spouse.

All this may be an option but is certainly not a guarantee of care home fees avoidance.

On the ground,  I am aware of members of the public being offered products which purport to guarantee care home avoidance and are being charged at RIP off rates.(say £5,000 for a service a solicitor would charge £1,000 at most) 

The organisations offering these services knock on doors, sound convincing and play on people's fears. They are not regulated so recourse against them is low.

A better bill by the Government for dealing with care fees would mitigate this happening.
Monday July 7, 2014 at 8:26am
It is now two months now since the European Court of Justice (ECJ) ruled that Google should heed those seeking the “right to be forgotten” and hide embarrassing stories from search engine results.

The rationale was to help ordinary people escape their past, especially if caught in compromising situations.

This began with Mario Costeja González, a Spaniard who was rather embarrassed that anyone searching his name online could find that he had been forced to sell his house in order to settle debts some years ago. He asked Google to remove the story and they declined. His case went all the way to the ECJ and he won.

Google has now quite a bit of work to do and remove some things from the web.

As ever this is a balancing act between the potency of the search engine which can remember many details about us and the right to some privacy.

Now we are facing the fact that a number of people are trying to hide their past and some of it looks pretty unpleasant.

Some recently reported example of trying to remove web links include.... 

A politician who had been caught fiddling his expenses has applied to Google, asking for links to the story to vanish.

An actor has been in touch, keen to cover up his affair with a teenager.

Google has also heard from a company anxious to cover up any online discussion pertaining to its ripping off customers.

In theory, anyone can request the removal of stories from search engines if these are deemed “inadequate, irrelevant or no longer relevant”.

These are conditions vague enough to have encouraged 70,000 requests so far.

We will have to see what actually happens but there is bound to be more litigation on this.

Those of us uncomfortable about this and who would wish us to have leave the EU have more ammunition by looking at the decision from the EU judges.

That said, this decision could have been made in the Uk anyway by a  UK Judge.

Irrespective of where you stand on the issue, perhaps the ideal is to follow our US cousins and have a bill of rights embedded in our constitution.

At least we would get some clarity on this issue.

In the US, no judges are telling search engines what to do, as the First Amendment of the Constitution guarantees freedom of speech, and protection from all such interference.

That is clarity.

Of course with the primacy of EU law this right of freedom of speech may turn out to be a pipe dream as long as we remain in the EU.
Monday June 30, 2014 at 10:35pm
As is poitnted out in the Guardian, on my way to Poland for a book festival the other week, the book reviewer I was going through security at Heathrow behind a man of advanced years who walked with a crutch. He went through the metal detector leaning on his wife, having left the crutch next to the conveyor belt. The detector beeped, so the man was given his crutch and forced to go back through to remove his shoes, a procedure that obviously caused him some annoyance and discomfort. Now in socks, he was ordered to pass through the metal detector again.

But he wasn't allowed to take his crutch with him, and his wife wasn't allowed to go back through the detector. Eventually, the security guard himself reached a hand through the detector to help him and the man, grimacing, limped through, while his crutch passed through the baggage scanner. My fellow travellers and I were all mightily relieved when the implement came out the other end, indicating, reassuringly, that the man was not a maniacal terrorist with a cunning crutch-bomb.

In the Interests of Safety: The absurd rules that blight our lives and how we can change them
by Tracey Brown, Michael Hanlon

We've all seen such examples of what the writer Bruce Schneier calls the meaningless "security theatre" at airports. One pilot had his butter knife confiscated, just before taking the controls of an enormous metal machine packed with flammable fuel. Liquids were banned in carry-on baggage even though the inciting incident – a "plot" to mix innocuous chemicals in the plane's toilet and thereby produce explosives – almost certainly wouldn't have worked. And yet, as Tracey Brown and Michael Hanlon point out in this book, passengers are not only allowed but encouraged to buy and take on board large duty-free bottles of alcoholic spirits, which could easily be turned into Molotov cocktails.
Monday June 30, 2014 at 9:49pm
Currently I am doing some consultancy with a well known organisation in addition to my traditional firm activities. Often I am finding myself aadvising either beneficiaries and/or executors who have problems with an executor. Typically the relationship has broken down and the desire is to remove the executor.

Easy peasy, or not. Not is the answer though it is not insurmountable and it requires some great skill.

Overall except when there has been actual wrong doing or fraud, the judge will be reluctant to remove an executor.

Just because someone is slow, inefficient, possibly negligent does not automatically lead to removing an executor.

What are your options? Should you give up?

In the first instance you should try to engage with the Executor and apply as much personal influence as possible to get what you want. An overt threat rarely fits the bill.

Legally, the judge will only remove the executor if it is the proper interests of the administration of the estate.  My legal tip is to set out in open correspondence a detailed account of what has gone wrong yo date and what needs to be done.

And that is a skill.....

Only then should you as executor consider court action which is a risky business.

Good luck.....

Wednesday June 18, 2014 at 6:50am

According to recent statistics, the number of employment tribunal claims lodged in the first three months of 2014 fell by more than half compared to the same period last year.

Between January and March 5,619 single claims were made compared to 13,739 during the same three months last year - a 59% fall.

Big numbers.

The statistics follow on from a 64% fall in single employment claims and a 79% fall in all employment claims submitted over the final three months of last year.

As I have previously written, it goes to show that the number of claims has been significantly impacted by the fees regime.

I still believe that a successful challenge will be launched by one of the trade unions but it is going to take time. Moreover, a number of employment lawyers will have left the industry by then due to lack of work.
Tuesday June 17, 2014 at 9:00am

So Nigel Farage could be in trouble with the election watchdog after failing to declare £200,000 in donations over more than a decade.

The Ukip leader apparently disclosed to Brussels authorities that he had been receiving free use of an office in Britain since 2001 but he did not tell the Electoral Commission. This deals with whether Mr Farage has been pocketing EU expenses.

Under the Political Parties, Elections and Referendums Act 2000, regulated recipients - including MEPs like Mr Farage must report gifts within 30 days of accepting them. The penalties for not complying can include fines of up to £20,000 and, in the most extreme cases, a 12-month prison term.

From my point of view it makes a nice story that Mr Farage may end up in jail. It seems unlikely that it will happen. What I would say is that all of us are under much more scrutiny with potential legal hurdles, watchdogs and ombudsmen.

There seems to be so many strands of legal bureaucracy in everything we do. If you are not happy with your energy bill, you can complain to an ombudsman. If you are not happy with your lawyer, you can complain to an ombudsman. Whether it leads to more justice is another matter.

Perhaps someone who is more likely to go to jail than Mr Farage is the dog owner, Russell Hoyle whose rottweiler was sent a voting card. Hoyle could face jail after being reported to the police for allegedly providing false information to the electoral roll. According to the Guardian, Hoyle, 45, says there was a mix-up during the last census when an official came to his house asking who lived at the address. He claims he said: "There is myself and my wife. My son is not old enough to vote." He then says he joked: "We have got Zeus living here as well and he is 63 in dog years." I hope the CPS have a sense of humour for the sake of Mr Hoyle.

Tuesday April 29, 2014 at 10:18am
One of the trends which I have noticed with the downturn over the past five years is the number of people within a variety of different legal issues who now deal with their own legal problems.(e.g they do not take advice).

In addition, there are an increasing number of companies/organisations who provide a legal advice service be that low cost telephone advice or free information on the internet.

On the one hand this is good, people are getting to solve their own problems rather than paying a very high solicitors rate or worse, doing nothing.

However, there are problems.

From experience I am coming across people who are simply out of their depth. Say, they start doing their Tribunal claim and they end up stuck in the legal system having started something. More often than not, they do something which is damaging on their case. The results are often not pretty. It really is a matter of balance and deciding when you need help and when you can do it yourself..
Monday April 21, 2014 at 3:44pm
The recent trial of former deputy, Commons deputy speaker Nigel Evans has illustrated some rather interesting weaknesses within the English legal system.

Mr. Evans was cleared of a string of sex offences this month and has now  expressed his regret for supporting legal aid cuts.

The reason for this is that  he is £130,000 out of pocket after funding his defence of rape and sexual assault charges.

He has asked for the Crown Prosecution Service to reimburse his costs and spoken out to call for reasonable legal costs to be repaid.

I do not think that is going to happen.

He said he was shocked to realise that he would not get the legal fees back following his acquittal.

Welcome to the real world Mr Evans, recently I had a client accused of theft  in a not disilmilar position who despite the CPS withdrawing the case, there were no recovery of costs within the Crown Court.

My client who is no big earner is about £7,000 out of pocket. I repeat the CPS whose case was a mess never brought the case to trial.

No apology was given by the CPS. 

No doubt the CPS will continue to laud itself; for example,Last year in 2012-13, the CPS has achieved its highest ever rape and domestic violence conviction rates, with 63.2% of rape prosecutions and 74.3% of domestic violence prosecutions. The CPS will also take heart from the recent conviction of Max Clifford.

The legal position is set out here:

http://www.lawsociety.org.uk/advice/practice-notes/defence-costs-orders/

Work for a privately paying client in the Magistrates can be recovered but only at Legal Aid rates (as claimed)

For matters after the 1/10/12 and before 27/01/14.

No costs are recoverable in the Crown Court from Central Funds unless:

• where the accused is an individual and the order is made under section 16(1), 16(3), or section 16(4)(a)(ii) or (iii) or (d) of the POA;
• where the accused is an individual and the legal costs were incurred in proceedings in a court below, which were either proceedings in a magistrates’ court, or proceedings on appeal to the Crown Court under section 108 of the Magistrates’ Courts Act 1980 (right of appeal against conviction or sentence); or
• where the legal costs were incurred in proceedings in the Supreme Court.

This is not justice, it is simple at that. But hey, we have one of the most effective(draconian?) health and safety legal systems in the world and is that not more important?
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