Barrister Magazine issue 41
Transcript of Barrister Magazine issue 41
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Jeremy Bentham, the Eighteenth Century jurist,philosopher and social reformer, believed thatin the darkness of secrecy, sinister interestand evil in every shape have full swing. Only inproportion as publicity has place can any of thechecks applicable to judicial injustice operate.
Where there is no publicity there is no justice
Publicity is the very soul of justice. It is thekeenest spur to exertion and the surest of allguards against improbity. It keeps the judgehimself while trying under trial . Theseopinions have lain at the heart of the debate,conducted inside and outside of the family courtsfor many years, about the extent to which itsprocesses should be exposed to public scrutiny.
In the last three years, the debate was stoked bytwo full public consultations 1 which canvassedviews about media access to the family courts;opinion was strongly divided. Unsurprisingly,100% of media representatives who responded tothese consultations agreed with the proposition
that they should be admitted as of right; 72%of members of the public and 54% of voluntarysector (charities for children, adults or others)o r g a n i s a t i o n swho replied alsoapparently agreed.
A significant
percentage (upto 72%) of the judiciary respondingexpressed viewsagainst mediaaccess, as did 77% of the responses fromlocal and devolvedgovernment andNon-DepartmentalPublic Bodies(NDPBs), and 78%of responses fromlegal practitioners or bodies representingthem.
p.28
N ws
Where there is no publicity there is no justice?
TriNiTY TerM iSSUe
eSSeNTiAL reADiNG FOr BArriSTerS
www.ba st magaz n .com
STEPHEN COBB QCFamily Law Specialist
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Bar Council W lcom s Lor JusticJacksons's pr limIinary R ort
e st . 1999
A British Bill of Rights and ResponsibilitiesIt all looked so different in July 2007 - a newprime minister: a new approach. A greenpaper heralded the ascent of Gordon Brownby promising to make the executive moreaccountable. It even speculated that we mightneed a concordat between the executive andParliament or a written constitution. Now,
we have a further green paper, Rights andResponsibilities: developing our constitutionalframework.
The political territory occupied byproposals for a bill of rights - with or withoutadditional duties or responsibilities - is gettingcrowded. Northern Ireland was promised onein the Good Friday Agreement and its HumanRights Commission finally came up with a draftlast December. The UK Parliamentary JointCommittee on Human Rights took it upon itself to draft one last August. David Cameron hascalled for one over the last couple of years. Wecan now add the governments proposals. Debateon the latter can be followed on its own website
(http://www.governance.justice.gov.uk/). Thisallows you to keep up with the debate on Twitter,webcasts, webchats and emailed discussion.Indications are, alas, that trade is slow. Only fourpeople, for example, contributed to the thread onresponsibilities during the whole month of April.
Reasons for such low response to
the Ministrys big debate are not hard to find.Gordon Brown, with the saving of the economyon his mind, appears to have lost interest inthe democratic project. Even if he had not, hiscabinet are reportedly hostile to anything thatmight be interpreted as extending rights. Theoriginal proposal for a British Bill of Rights andResponsibilities has fallen foul of a numberof somewhat recalcitrant forces in devolved
jurisdictions, notably the Scottish National Party,that see little to gain from linking themselves tosuch a Westminster initiative. Anyway, publicattention is switching from Labourto the Tories. Finally, the latest greenpaper offers only a consultation without
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Ch ri Booth urg s Manch st r firms tonurtur f mal tal nt
dAngerous minds
Th ir cting min f nc hassurviv th ju gm nt in F rguson but to
sca liability, larg com ani s will nto consi r th r l vant statut , argu s
Thom dyk .
sentencing solutions
Th unsustainabl l v ls of o lim rison in Britain to ay is in liblylink with short-t rm s nt ncing. Asignificant ro ortion of rison rs housin UK risons ar on s nt nc s of ony ar or l ss, an it is th magistrat swho rimarily han own s nt nc s tothis grou
By Roma Hoo r, dir ctor, Mak JusticWork
JAcKson: A review for reviewssAKe or A vAliAnt effort?
On 8 May th att ntion of th l gal worlturn to th subj ct of civil litigationcosts as Jackson LJ r v al th t rmsof r f r nc of his y ar-long r vi w of thmatt r in his r liminary r ort.
By Bob Gor on, CeO, 1st Class l gal
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03 the barrister Dangerous mindsThe directing mind defence has survived the judgment in Ferguson but to escapeliability, large companies will need to consider the relevant statute, argues Thom Dyke .
T
he Court of Appeal in
Ferguson v British Gas
[2009] EWCA Civ 46
sent a strong message
that it was not prepared
to accept any attempt
to escape liability for criminal and tortious
acts by hiding behind what was termed by
Sedley LJ as the privilege of incorporation.
The decision provides a timely warning for
large organisations who rely on automated
systems to provide customer services, but
what effect will it have in practice for the law
of corporate criminal liability?
Facts
Ms Ferguson brought her claim against British
Gas under the Protection from Harassment
Act 1997 in respect of their threatening
behaviour following her move to another gas
supplier in May 2006. From August 2006,
British Gas sent Ms Ferguson an unstoppable
torrent of bills and threatening letters. The
letters consisted of three variously connected
threats; disconnection, legal proceedings,
and reporting to credit rating agencies. Ms
Ferguson attempted to contact British Gas byphone, through writing a number of letters
(including two to the Chairman of British
Gas), and indirectly, via a complaint to
Energy Watch. Her attempts were met by a
combination of unresponsiveness, apologies
and additional threats.
British Gas applied unsuccessfully to strike
out the claim. On appeal from the decision of
HHJ Seymour QC, they argued, inter alia , that
they could not be held liable as she had not
brought the claim against a named employee
of the company. They contended that Ms
Ferguson needed to sue either an employee
for whose acts the company would be
vicariously liable, or someone with sufficient
seniority to be regarded as the directing
mind of the company. Furthermore it was
argued by counsel for British Gas, that as the
threats had been generated by an automatic
computer system, Ms Ferguson should have
known to not take them as seriously as if they
had been from an individual.
The Court of Appeal had little sympathy with
these arguments, and rejected the appeal in
a robustly worded judgement. In particular,
Sedley LJ noted the absurdity which would
result from a situation whereby large
organisations could hide behind corporate
structures to defend their actions. It would
mean that the privilege of incorporation not
only shielded its shareholders and directors
from personal liability for its debts, but
protected the company itself from legal
liabilities which a natural person cannot
evade.
Counsel for British Gas came in for particular
criticism over the failure to provide as full a
citation of authority about corporate liabilityas might be appropriate (per Jacob LJ). As a
result, the Court of Appeal asked their judicial
assistants to carry out further research into
the recent case law. This led to a raft of
further cases being considered, including;
Essendon Engineering v Maile [1982] Crim
LR 510; Group Newspapers v SOGAT [1987]
ICR 181; Tesco v Brent [1993] 1 WLR 1037;
Re Supply of Ready Mixed Concrete (No.2)
[1995] 1 AC 456; Meridian Global Funds
Management Asia v Securities Commission
[1995] 2 AC 500; Re British Steel [1995] 1
WLR 1356; and Cambridgeshire CC v Kama
[2006] EWHC 3148.
Corporate ego
By rejecting the corporate liability argument
raised by British Gas, has t he Court of Appeal
effectively neutered the requirement to bring
an action against a directing mind? The
common law has traditionally been quick
to allow civil claimants to recover against
corporate bodies through the mechanism
of vicarious liability. When it comes to
determining criminal liability however,
courts have been required claimants to
jump through the hoop of the identification
doctrine.
The classic formulation of this principle
was laid down by Viscount Haldane LC
in Lennard's Carrying Co Ltd v Asiatic
Petroleum Co Ltd [1915] AC 705:
A corporation is an abstraction. It has
no mind of its own any more than it has a
body of its own; its active and directing will
must consequently be sought in the person
of somebody who for some purposes may
be called an agent, but who is really the
directing mind and will of the corporation,
the very ego and centre of the personality of the corporation.
This doctrine has had the effect of imposing
a tough burden on claimants. Bringing
a claim against a small company will be
relatively easy, where there may be only one
or two individuals who comprise the entire
management structure. However, claims
will be much more difficult to bring against
larger organisations with complex internal
structural arrangements.
It is worthy of note that the House of Lords
in Lennard's, considered that where the
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8/9/2019 Barrister Magazine issue 41
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04 the barrister directing mind defence was raised in
response to an action, the responsibility for
discharging the burden of proof lay with the
company raising it. As the defendant had
failed to call the relevant individual to give
evidence, the House of Lords held that he
should be regarded as the directing mind of
the company for the purposes of the claim.
Applying the doctrine
The doctrine of identification has resulted in
a situation where large anonymous corporate
entities are better placed to escape criminal
iability than their smaller counterparts. Asthe subsequent case law shows, the courts
have made some attempts to mitigate against
ts worst effects.
The rule was applied in the leading case
of Tesco v Nattrass [1972] AC 153. This
concerned a prosecution under the Trade
Descriptions Act 1968. Tesco escaped liability
through the defence provided under s.24(1),
which applied where the offending action
had been undertaken by the act or default
of another person and Tesco had exercised
all due diligence to avoid the commission of
such an offence. Responsibility rested on
the actions of the individual employee, and
t was held that on the appropriate statutory
construction the company could avoid liability
via the s.24(1) defence.
Tesco was subsequently involved in a case
which turned on the application of the same
principle to a different statute. In Tesco v
Brent [1993] 1 WLR 1037, the Divisional
Court rejected the argument that Tesco as a
corporate entity could not have knowledge
about the age of a 14-year-old purchaser
of an 18 certificate video. However, the
court noted that the language in the Video
Recordings Act 1984 referred to knowledge
and information and not due diligence.
Staughton LJ recognised the potentially
harsh effect that could arise as a result of
taking too strict an approach to applying the
identification doctrine, stating that he could
not believe that Parliament intended the
large company to be acquitted but the single-
handed shopkeeper convicted.
Statutory interpretation
In Ferguson, the relevant statute was the
Protection from Harassment Act 1997. It
does not contain a defence of corporate
due diligence, or accidental harassment.
Instead it uses comparable language to the
Video Recordings Act. For instance, s.1(2)
refers to the knowledge, or presumption of
knowledge, of a reasonable person, in relationto the offence. Perhaps unfortunately, as the
case only concerned an application to strike
out, the court was not addressed in detail as
to the question of the level of knowledge of
British Gas in this particular case.
The court was careful to limit the application
of its decision in Ferguson to the instant
case. As Jacob LJ noted, one cannot just
jump from one Act to another and say the
rule for one is the rule for the other. Whilst
it is still the case that each statute will need
to be approached sui generis, some general
points can be discerned from the authorities.
Crucially, where the legislation in question
does not contain a due diligence defence,
or refers to real or imputed knowledge, it is
unlikely that companies raising a directing
mind defence will be successful.
The approach of the courts has been
largely sympathetic in relation to individual
claimants bringing actions against large
corporations. Indeed, the judgment opens
with Jacob LJ opining that it is one of the
glories of this country that every now and then
one of its citizens is prepared to take a stand
against the big battalions of government or
industry. Sedley LJ highlighted the disparity
of arms, noting that it would be remarkable
ifthe privilege of incorporation not only
shielded its shareholders and directors from
personal liability for its debts but protected
the company itself from legal liabilities which
a natural person cannot evade.
Future developments
There has been a recent legislative push to
restrict the loophole created by the directing
mind principle. The Corporate Manslaughter
and Corporate Homicide Act 2007 has made
it significantly easier for the police and
Health and Safety Executive to bring an
action against a large corporate body for
manslaughter occurring as a result of fault on
the part of the body itself. Following on from
this landmark piece of legislation, the Healthand Safety (Offences) Act 2008 introduced
the option of custodial sentences as well as
an unlimited fine in cases involving a breach
of health and safety legislation.
While the ruling in Ferguson does not close
the door to raising a directing mind defence,
it does raise serious questions about its
application in future cases. The question of
how Ferguson applies to future cases is likely
to be subject to a considerable amount of
debate by lawyers on all sides of the issue.
------------------------------------------------------
Thom Dyke is a barrister.
V:\FERGUSON V BRITISH GAS\THE
BARRISTER\FERGUSON - THE BARRISTER
[TD 15-04-09].DOC
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8/9/2019 Barrister Magazine issue 41
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06 the barrister 07 the barrister
Sentencing solutionsThe unsustainable levels of people imprisoned in Britain today is indelibly linked withshort-term sentencing. A significant proportion of prisoners housed in UK prisons are onsentences of one year or less, and it is the magistrates who primarily hand down sentencesto this group
By Roma Hooper , Director, Make Justice Work
Britain is locking up its
citizens at record rates.The number of prisoners
in England and Wales
has increased by 30% in
the ten years from 1997
to 2007. When Labour came to government
n 1997, the prison population was just
over 60,000. Previously it took nearly
four decades (1958 to 1995) for the prison
population to rise by 25,000. The buildings
that house them are bursting at the seams
and overcrowding is endemic. It is in this
context that the debate over the sentencing
powers of magistrates was reopened in April
with the announcement that the court system
will soon undergo an overhaul.
Magistrates are a vital and important part of
the UK court system but the number of cases
they are dealing with has fallen away bybetween a quarter and a third over the last
few years - due in part to the abandonment
of Custody Plus when magistrates could have
sentenced someone to an under 12 month
sentence, most of which would actually have
been served in the community. At the same
time, police powers to deal with more minor
offences have reduced the number of cases
coming to magistrates courts Yet, since
1997, 4,000 new criminal offences have been
created. Thats seven laws a day, and it is
the magistrates court that largely has to
mplement them. More of a concern is that
there has been an up-tarrifing of certain
crimes which has created a net widening
phenomena criminalising more membersof society. The proposed solution by the
Magistrates Association to increase the
sentencing powers of magistrates giving
them the ability to sentence offenders to a
maximum of one year in prison instead of
the current six month limit may provide
temporary respite for the public but does
not address the fundamental problem
that prisoners receiving less than a twelve
month sentence receive no support from
the probation service after custody, unlike
if they were serving a community sentence.
The suggested change would inevitably have
an immediate knock-on affect for Britains
prison system by potentially driving up
the short sentenced prison population
to unmanageable levels in an already
overcrowded system.
The unsustainable levels of people
imprisoned in Britain today is indelibly linked
with short-term sentencing. A significant
proportion of prisoners housed in UK prisons
are on sentences of one year or less, and
it is the magistrates who primarily hand
down sentences to this group. In response
magistrates say that rather than increasing
their powers to reflect the changing face
of Britains laws, the sentencing options
open to magistrates when hearing cases has
contracted or at best stayed still. Unlike
custodial sentencing where a magistrates
options are clearly defined by guidelines,
community sentences for low-level offenders
who require, for example, drug treatmentand mental health orders are inconsistent
and vary from area to area. Furthermore,
national and local funding cuts mean that
a magistrate is often hamstrung when
deliberating about accessible appropriate
community sentences for those on the cusp
of custody.
All this adds up to an over-reliance on prison
for offences that while unacceptable and
damaging to victims and wider society
should not warrant a custodial sentence. The
lack of options open to magistrates when
sentencing is a symptom of a government
which has blindly followed a lockem up
approach to criminal justice in attempt
to appear tough on crime. Rather than
adequately distributing funds into establishing
a coherent and robust set of alternativesto prison for low-level offences which can
reduce re-offending, the government has
created a sentencing culture where custody
has become the default option. Doubling
the length of custodial sentences magistrates
can hand down to 12 months is counter
intuitive to their role as volunteer members
of their local communities. It remains totally
appropriate for those more serious cases to
be dealt with in the Crown Court.
So unless we divert money away from prisons
into badly needed community sentences
which can offer a more holistic, wrap around
set of rehabilitative interventions such as
drug and alcohol treatment programmes,
literacy, accommodation and job /training
opportunities the system will continue to
perpetuate an unrealistic expectation that
building more prison places is the answer to
all ills. The reality is that prison does little
to reduce the number of victims and does
absolutely nothing to reduce re-offending for
short sentenced prisoners.
In conjunction with pressure from magistratesthere needs to be a wide spread challenge to
government by our judiciary, campaigners,
key stakeholders and members of the public
pushing the line that the existing prison
system is utterly disingenuous to victims and
the public. Imprisoning low-level offenders
does not improve the publics sense of
safety and well-being and cannot reduce the
likelihood of low level offenders continuing
to re-offend. More low-level offenders need
to be funneled into robust alternatives to
custody rather than sucked into the prison
system. If things continue as they are
magistrates will soon find themselves in a
position where 12 months custody seems
inadequate. The real imperative is to support
magistrates to ensure that they are confident
in their choice of community sentences for
low level offenders. Surely in this economic
recession it is time to divert money away
from building new prison places into robust,well managed alternatives to custody so
that magistrates' powers are not reduced.
On the contrary, rather than focusing on
sentencing people to prison for ineffective
short sentences, they can confidently use
community sentences. Evidence confirms
these are more successful at reducing
re-offending and most importantly, reducing
the number of victims. Let common sense
prevail it is not just about saving money but
it also about what works.
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08 the barrister
Financial Loss Modelling in LitigationFinancial loss modelling is a valuable and cost effective tool in dispute resolution.
By Frdrique Hardy , senior manager in the London office of RGL Forensics
Complex mathematical
models have been widely
used and relied on to value
the assets, the returns,
and the risk profiles of
the mortgage-backed
securities which precipitated the credit
crunch crisis. These models have come under
severe criticism for becoming so complex
that their end users could not understand
them properly and so disconnected from
the underlying economic reality they sought
to reflect as to become misleading (not to
say costly). Paradoxically, in the current
climate, companies are more keen than ever
to quantify financial losses of increasing size
and complexity, which makes financial loss
modelling all the more relevant.
Handling large amounts of data
Loss modelling in the context of legal disputes
s the task of assembling financial data and
variables to arrive at a single or a range of
calculations. One of the key advantages of
a loss model is its ability to handle large
amounts of data in a comprehensive and
controlled manner.
Case study - the catering firm
In the case of a dispute between a large
catering firm and one of its suppliers, the
supplier alleged that the catering firm had
purchased consumables from alternative
suppliers in breach of a sole supply agreement.
Although the consumables represented
a small proportion of the catering firms
overall cost base, the claim was significant
as the breach was alleged to extend over
several years and across several thousand
catering outlets. The catering outlets ranged
from railway stations, hospitals, schools,
to corporate entities and sporting events
with consumption patterns which differed
significantly between outlets.
It would have been neither cost effective
nor feasible to review the purchases of each
individual outlet separately, nor indeed,
to prepare several thousand individual
calculations. Another difficulty was to
establish which outlets had been compliant
with, and which outlets had been in breach
of, the supply agreement.
To overcome this, a financial model was
created. A large amount of financial data
was collated for each outlet, and input into
the model. Outlets were then grouped by
category of cost behaviour and divided
between those that were compliant and those
not, depending on whether their actual spend
with the supplier was deemed to be in line
with expected usage over the period under
review. The data within the compliant group
was used as a benchmark to calculate losses
at the non compliant outlets. A key area of
discussion was how to determine the level of
spend which would show exclusive relianceon the supplier. The strength of the model
was that this assumption could be changed
with one click; all several thousand outlets
being automatically re-categorised between
the compliant and the non compliant, and
the calculation would update in a moment.
Furthermore, various scenarios were
integrated into the model to assist legal
teams in understanding the financial issues.
Reflecting complex revenue and coststructures
Financial modelling is also useful when
quantifying damages arising in companies
that operate in areas of industry with complex
revenue and cost structures, which do not
respond well to accounting simplification. In
such cases, although accounting data may
be of a manageable size, the loss can be
more accurately computed if it reflects the
complex underlying economic principles of
the companys operations.
Case study - the airline
Take a hypothetical example of the financial
loss suffered by an airline following the crash
of one of its aircraft. The airline could suffer
disruptions to its entire operations, with a
diminished fleet flying emptier planes and
losing both revenues and profitability against
the relatively high cost base of maintaining
its flight schedule. Loss modelling can be
used to measure the impact of the accident
on each revenue stream as well as each
cost line. For instance, passenger revenue
can be modelled for each plane on each
route and analysed between scheduled flights
and charter flights. Costs can be computed
for each flight depending on the route and
aircraft used. The results are accumulatedinto a calculation which accurately reflects
the causal link between the accident and
calculated consequential losses. The model
can be flexed for sensitivity analysis of a
number of key loss drivers such as; aircraft
swapping between routes, changes to seat
pricing, reductions in flight occupancy ratios,
cost inflation, and fuel surcharges.
The detail of the analysis combined with the
ability to flex the model for changes in key
assumptions gives a high level of assurance
as to the accuracy and reasonableness of the
overall calculation.
Bringing together various areas of expertiseComplex cases often require input from
various experts. In this context, loss
modelling can be used to bring together
and summarise the findings of experts from
different disciplines.
Case study - the copper mine
In the case of an open pit copper mine
which suffered a landslide, a financial
model was created to quantify economic
damages. The mining plan was reviewed by
mining experts, costing by accountants, andcausation by lawyers. The model was set up
to calculate various loss scenarios depending
on alternative mining sequences submitted
by the mining engineers. The model output
was used to determine which course of action
would minimise the economic loss while
maximising operational safety. The model
was also used to compare and reconcile
actual losses incurred after application of
various causation issues, as advised by the
legal team.
The flexibility of the model meant that, as
review of the loss progressed, each team
could update its findings, and the calculations
could be updated quickly and effectively.
Enhancing understanding of a loss
Although financial models are usually relied
on in cases where matters of quantum are
complex, they also offer a unique opportunity
to stress test quantum for common sense.
Models which are designed with extensive
what if? analysis in mind can help enhance
the legal teams understanding of how the
numbers work.
Case study - the commercial building
Following a temporary shutdown at a
commercial building due to a construction
defect, a financial model was created to
compare several options for planned
remedial work. What would the losses be
if the building was shut fully over a short
period of time, and then re-opened? What
would the costs be if it was shut in phases
instead? This financial model relied on both
factual data and assumptions. The factual
data, such as actual historic sales and rates
of profit, did not change. Assumptions were
applied to this data, for instance the length
of repairs, the level of disruption during
repairs, or the impact of the economy on
the tenants, to project losses both for the
building as a whole, and for each individual
tenant separately. These assumptions were
segregated from factual data and could be
changed easily, enabling users to request
alternative scenarios and understand
how numbers changed depending on theassumptions input into the model.
This scenario analysis was carried out at
round table meetings, with the model shown
on screen and its various inputs and outputs
being updated and debated live. The legal
team, who was not involved in the detail of
the financial review, found this a very helpful
tool to gain a better understanding of the key
drivers of the loss.
Assisting in dispute resolution
As illustrated in the various examples above,
loss modelling has a number of strengths Accurate and comprehensive
handling of large amounts of data Integration of various areas of
expertise into a single calculation model Segregation of factual data from
assumptions Flexibility in producing scenario
and sensitivity analysis Live one-click updating
It is these characteristics that make loss
modelling such a strong tool in dispute
resolution. Loss models are useful throughout
the litigation cycle.
Loss models can be used by a legal team in
the development of a pre-litigation strategy.
This is because they can be set up to quantify
the financial value of individual legal issues,
as well as measure the combined effect
of issues which may overlap in terms of
quantum. Assumptions can be changed for
best and worst case, which can be helpful
when establishing areas of strength and
weakness in a case, and also for Part 36
offers.
Financial loss models are also useful in
highlighting areas of disagreement between
experts. Whereas factual data should be
relatively easy to agree, disagreement on
points of methodology or assumptions can be
segregated and their monetary value isolated.
They are also helpful when isolating
matters which are outside the expertise of
the accountant, and presenting the Courtwith alternative scenarios depending on the
findings of a team of experts.
Their flexibility is also an asset when it
becomes necessary to quickly incorporate the
impact of new disclosure during the litigation
process, especially when deadlines are tight
and there is no time to prepare a completely
new set of calculations.
Finally, by their very nature, they are ideally
suited to developing a settlement matrix in
alternative dispute resolution.
Such versatility, when used appropriately,
makes loss modelling a surprisingly cost
effective tool. It is robust in producing
accurate calculations that rely on complex
underlying analysis, and it has one-click
flexibility in updating those calculations
for new information, as well as producing
ranges of alternative scenarios. This makes
it an essential tool in calculating damages.
-----------------------------------------------------
Frdrique Hardy is a senior manager in
the London office of RGL Forensics, who
specialise in forensic accounting and the
quantification of damages.
www.rgl.com
09 the barrister
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10 the barrister
a time limit. This, in the parlanceof government, is an idea beingkicked into the long grass.
The fundamental problems that the proposal for a bill of rights brings
together too many contradictory themes.For a start, any use of the phrase itself isa claim of resonance with the great Billof Rights 1689 that still sets the course forthe modern British state a constitutionalmonarchy, the establishment of a protestantreligion, a sketch of modern liberties and aine of succession that cuts out the Stuarts.
These are big boots in which to strut andonly really justified by a degree of political
consensus, currently unrealistic, combinedwith significant content, currently unclear.Any proposal for a bill of rights necessarilyentails consideration of the HumanRights Act 1998, the role of the EuropeanConvention on Human Rights and theposition of the European Court of HumanRights. The government explicitly rules outany qualification of the European Conventionn its green paper. David Cameron is not
always so clear. In a 2007 presentation tothe Police Federation, he promised to repealthe Human Rights Act and give the policemore power. Ken Clarke, now brought in togive additional weight to the shadow cabinet,previously called his bosss proposals for abill of rights xenophobic and legal nonsense.The Daily Mail, meanwhile, continues itsnear-hysterical demonisation of humanrights, making little distinction between theHuman Rights Act, which could be amendedor repealed, and the underlying EuropeanConvention, to which the UK is a signatoryand by which it is realistically bound for theforeseeable future. UK foreign policy is inenough global difficulty without having toexplain to the world the attraction of joiningBelarus as the only country in geographicalEurope that spurns membership of theCouncil of Europe.
The government apparently wantsto keep the Human Rights Act but is attractedto the idea of adding a list of additional dutiesand responsibilities. It would like to re-enforce British identity by restating a list of duties on those within the country. It is alsonterested in exploring whether there are any
home-grown rights that could be added tothose of the Convention. The authors of thepaper are, happily, not entirely devoid of asense of irony or perhaps a gallows humour- as they go about their endeavours. Theyspeculate that a list of duties might include
the responsibility to pay taxes. Their exampleis the Italian constitution. This requireseveryone to contribute to public expenditurein accordance with their capacity. However,those currently suspected of Italian taxevasion include Silvio Berlusconi, FabioCapello and the Venetian gondoliers thelatter shopped by way of an ugly divorce andvengeful wife of one of their number. Italy isnot a good precedent for the efficacy of sucha general provision.
New rights are equally tricky. BothLabour and the Conservatives mention thepossibility of a right to jury trial as a specificBritish right as traditional as roast beef. The
green paper mentions that 89 per cent of people supported protection of this right ina recent opinion poll. The difficulty, however,lies, with the devil, in the detail. The greenpaper points out that juries currently try only5 per cent of all criminal cases. S43 CriminalJustice Act 2003 even allows the removalof the right to jury trial in certain cases of serious fraud, a proposal that has, in the past,appealed to Conservative as well as Labourgovernments. So, any statement of the rightis likely to be pretty guarded probablyalong the lines: Every one has the right toa trial by a jury in a serious and appropriatecase. Fear of public opinion currently keepsthe government from bringing section 43into force. It is difficult to see that a guardedgeneral statement of the kind proposed addsmuch.
Proposals for the articulationof rights in relation to social, economicor environmental matters become evenmore complicated. The British public,inconveniently for government finances,overwhelming support the statement of aright to health care. Indeed, they seriouslywant to enforce it in the courts if it relatesto such matters as the refusal of anti-cancerdrugs on the grounds of expense. NeitherGordon Brown nor David Cameron is tookeen. The gGreen Ppaper suggests that wemight articulate a series of declaratory rightsthat are articulated by, but not enforceablethrough, a bill of rights. No lawyer, and fewmembers of the public, can see much benefitin that.
The European Convention onHuman Rights sets out a minimum set of rights that apply to everyone be they Roma,gypsy, paedophile, asylum-seeker, criminal,prisoner. Majority public opinion sometimeswants to qualify those rights. People ask,for example, why obnoxious foreigners
cannot be sent to their home states even if they practice torture routinely or will notget a fair trial. Politicians are uneasy aboutexplaining that decisions of the EuropeanCourt of Human Rights mean that someonecannot be sent back from the UK to a countrywhere there is a real risk that they will betortured. They want to hint that there mightbe qualifications, restrictions, reservationsthat deprive undesirables of such protection.In reality, not even full abolition of the HumanRights Act would do that. The UK is boundby treaty to comply with the Convention anddecisions of the court in which the UK is aparty. To be fair, the green paper, though not
every Cconservative commentator, explainsthat. But, the government is drawn to thenotion of drafting a declaratory or otiose listof responsibilities as a degree of recognitionof the problem.
The jostling of both main politicalparties around some idea of a bill of rightssuggest that both see political advantage inhedging their bets on the subject of humanrights and, implicitly, the Human Rights Actitself. However, this Aact is, technically, arather elegantly drafted bit of legislation, theeffect of which is now becoming clearer and its
jurisprudence more settled and predictable.The European Convention on Human Rightsis a largely unexceptional statement of values,drafted by a British team at the ForeignOffice. Things could be improved. Parliamentcould have the courage to legislate on privacyand freedom of expression instead of leavingit to the judges. The quality of the EuropeanCourt could be improved; the Russians couldbe pressured to agree to measures to speedup its work. UK politicians could celebratethe protection of liberty that the EuropeanConvention gives such as the prohibition of the retention of the DNA of innocent people.The Human Rights Act retains the supremacyof Parliament and does not allow a court tostrike down legislation.
Would it not be much better if we just let the Human Rights At settle into thearchitecture of the constitution and, a decadeor so further on, see if we need to addressother elements of the constitutional edifice?But that would be logic: this is politics.
------------------------------------------------------
By Roger Smith OBE , Director, JUSTICE
11 the barrister
Student Barristers Negotiate the Long Road toCompetition SuccessBy Charles Shoebridge
A s with so much in
life, the invitation
seemed harmless
enough. Arriving
in November 2008,
the email from Anna
Cheunviratsakul, senior lecturer on the Bar
Vocational Course (BVC) at the Bloomsbury
Branch of the College of Law, invited students
to enter the annual college negotiation
competition.
Negotiation is one of twelve core assessments
comprising the BVC finals and, therefore, it
seemed sensible to pursue any opportunity
for practice. That, at least, was the logic I
put to my classmate Charlotte Whitehorn, as
I suggested we should take part. Yes, she
replied, it will be fun.
Notwithstanding, perhaps, the memories of
those who once studied for Bar Finals, the
workload on the BVC is heavy. If however
our decision to take on yet more work, along
with mooting, pro bono and other activities,
was questionable, it was one also made by
the thirty-seven other teams of two who,
likewise, entered the competition.
Within days some two thousand words of
common facts and confidential instructions
in relation to our client arrived. Singing
sixties television pig stars Pinky and Perky
were coming out of retirement, and we were
to represent our client in his bid to become
agent for the pigs now retired, and somewhat
reluctant, creators.
This was to be our first experience of
formal negotiation other than as the conflict
resolution we had learned on our course.
The techniques taught however appeared to
be equally suited to a deal-making scenario.
Thus, having spent hours analysing facts and
issues likely to arise, researching relevant
law, assessing our strengths and weaknesses,
and attempting to anticipate our opponents
positions and tactics, we hesitatingly entered
our first competition - the negotiation mantra
of position, question, bargain, conclude very
much in mind.
With around a third of BVC students taking
part, the first round was decided on a knock
out basis. Teams recorded their twenty-five
minute negotiation on a DVD, to be assessed
by a course tutor who then delivered detailed
written feedback to each team.
The second round, to which nineteen teams
including ourselves progressed, was decided
in similar fashion. This time, aristocratic
rural neighbours were in dispute in relation
to boundaries, nuisance and trespass
all of which, in the interests of avoiding
embarrassment and costs, as well, no doubt,
as a wish to adhere to the spirit of the CPR,
the parties desired to resolve by negotiation
rather than recourse to the courts.
Our feedback noted that in both rounds
we had, apparently, rather dominated our
opponents. For weeks, we blissfully assumed
this comment to be positive, until our tutors
pointed out that, in negotiation, the idea is
of course to get along with the opposition,
working together towards mutually
acceptable resolution.
Determined therefore to be more submissive,
or perhaps more collaborative, in our
approach, on 28 January we went into the
final of the college competition, judged
live by Anna Cheunviratsakul and Stephen
Illingworth, Acting Head of the Bloomsbury
BVC. On this occasion, a new partnership
agreement was needed between squabbling
osteopaths complicated, in what appeared
to be a developing theme, by two of the
partners having a relationship without the
knowledge of the third.
The following day, we learned we had been
selected, from the ten who had reached the
final, as one of two teams to represent the
college at a regional heat of the National
Negotiation Competition, open to every
undergraduate and postgraduate law school
in England and Wales.
With the arrival soon afterwards of our
emailed instructions, winning the college
championship soon didnt appear to have
been quite such a good idea. A contract was
to be negotiated for the construction of a
stadium in Georgia for the rugby world cup
in 2015. Along with competing interests to
consider and spreadsheets to complete, we
were also faced, by now almost inevitably it
seemed, with the wife of one board member
having run off with another, taking half his
prized possessions with her.
p.1
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12 the barrister 13 the barrister Arriving for the regional heat in Birmingham
on 21 February, teams performed two fifty
minute negotiations, each judged by a panel
of three academics or practitioners in a sort of
negotiation X Factor that assessed negotiation
outcomes, preparation, flexibility, teamwork,
ethics, and relationships with the opposing
team. Following each negotiation, teams
were further assessed in a ten minute period
of critical self reflection - an opportunity to
demonstrate potential improvements having
been identified, and lessons learned.
We now for the first time negotiated against
students from colleges other than our own
and, to our relief, found that the basic
techniques taught could, appropriately
adapted, be deployed effectively in most
situations. Of the sixteen teams at each of the
three regional heats, twelve in total, including
Charlie and myself, were selected to compete
n the national final.
The competition is sponsored by the Centre
for Effective Dispute Resolution and, as a
prize, the twelve winning teams attended an
excellent advanced negotiation techniques
training day at their London offices. Thus
equipped, on 28 March battle was joined at
Liverpools John Moores University, the home
of the 2008 competition winners.
For the teams, suffering sleep deprivation
from a night of last minute preparation and
false hotel fire alarms, the competition proved
a feat of endurance. Over some seven hours,
three relatively complex negotiations were
nterspersed only with preparation, feedback,
reflection, and yet more preparation.
Continuing the rugby theme, they included a
three way negotiation to decide a semi-final
venue, a multi-faceted hotel dispute, and a
collaborative exercise to create and agree
a multi-million pound closing ceremony.
All involved many hours of prior analysis,
planning, and legal and factual research,
together with argument, compromise and
concession to secure agreement and the
clients interests on the day.
By seven in the evening, competing was at an
end. A gala dinner for competitors, coaches,
judges and sponsors followed, after which
the time for announcing the winners arrived.
Notwithstanding the mistakes which Charlie
and I realised we had made, we considered
it still possible that we might have won third,
or even second prize. We soon learned thatthis was not to be.
Just as I apologised to our coach Anna
however, it was announced, much to our
delight and not a little surprise, that we had
won the competition. We were the new
national negotiation champions - a status put
to immediate practical use by the securing of
free wine for everyone in compensation for
the fire alarm disruption of the night before.
Whilst our success in the competition could
be credited to intense preparation, effective
teamwork and flexibility of approach, the
success of the competition itself resulted
from the hard work of all who participated
and, in particular, the organisation of
Mark Saunders, principal lecturer in law at
Kingston University.
As a means of making deals and resolving
disputes the future of negotiation is assured
and, notwithstanding its uncertain future
as part of the BVC, the ability to negotiate
effectively is, arguably, a core advocacy skill.
Even for that reason alone, taking part in the
Negotiation Competition is recommended for
anyone embarking on a legal career, and our
experience of doing so was overwhelmingly
positive. And, yes, a lot of fun too.
------------------------------------------------------
Charles Shoebridge is a graduate of
International History and Politics (Leeds),
was awarded the Graduate Diploma in
Law with Distinction in 2008, and is due to
complete the Bar Vocational Course at The
College of Law, Bloomsbury in June. Having
won the National Negotiation Competition, he
and Charlotte Whitehorn will now represent
England and Wales in The International
Negotiation Competition, to be held in July
2009 in Chicago, USA.
He can be contacted at
The use and abuse of motives and rationality inthe financial services industry
What makes motives in the investment sector unique is the dual-motive situation. In acriminal case, only the suspect either did or did not have a motive to commit the crime,not the victim. But in the financial sector, there are potential motives on both sides of the transaction
By Dr Brian Bloch FATM - University of Muenster
Introduction
Especially when themarkets are dropping,
investors who lose money
try to figure out whether
their brokers or banks did
something wrong. When
there are substantial losses, investors may
come to the conclusion that the real problem
lies not with the markets, but with the
investment itself and/or the seller. If they feel,
after the fact, that it was too risky for them, or
in some way mismanaged or misrepresented,
they may seek compensation or damages. In
such instances, it is common for the seller (or
their lawyers) to point the finger back at the
investor, claiming that he or she understood
the risks and was willing to take them.
Often, the seller will point to previous
investment experience as a justification
that the investor knew what he was getting
and wanted it. The issue of what really
constitutes such investment experience is
indeed a significant topic in itself. However,
the purpose of this article is to consider the
issue of motive as the key to determining
whether the investor would realistically,
and on a balance of probabilities, have gone
ahead with an investment if he/she had really
understood its nature and context.
The nature and meaning of motivesIn law, and particularly criminal law, a motive
is what induces people to act in a certain
way. It causes the decision or behaviour. The
legal system allows a motive to be proven
as a means of illuminating the reasons for
committing a crime. However, in criminal
law, the courts are less concerned with whythe defendant committed the crime, than they
are with whether. In the investment industry,
by contrast, the whether is there for all to
see, but the why is absolutely fundamental in
negligence and damages cases.
The classic false argument
Firms wishing to evade liability for misselling
or recommending unsuitable investments
will generally extrapolate almost any kind
of experience into an assumption that the
investor was well aware of the nature (of
almost any kind) of investment and the
attendant risks. Conversely, investors will
claim that they would never have gone
ahead, had they but known. In the face of
such defences, it is necessary to consider
the motives, not only of the investor, but of
the seller, and to take a long hard look at the
investment itself.
Alternatively expressed, when the losses
are there, firms attempt to justify their
recommendations on the basis of an
extremely generalised desire to make (a lot
of) money, largely irrespective of whether or
not the decision to proceed really made any
sense at the time for the buyer in question.
However, even if people are truly greedy and
out to make a quick profit, they are likely to
act in a certain way and not in another. That
is, they will act rationally.
After all, how many investors out there are
really willing to take extreme risks with their
money? Not many, and for those unfortunate
few, there is generally sufficient hardevidence to demonstrate such motives and
patterns of behaviour. And no one would take
truly ridiculous, downright foolish risks with
their own money.
But the seller may undoubtedly take such risks
with someone elses money. Consequently, no
firm or advisor should be permitted to defend
himself by claiming that it was the investor
who really wanted to proceed with what was
somewhere between a lousy investment and
financial suicide. It is essential to examine
damages or negligence cases in this context
of credible movies.
The double motive in financial cases
The crucial point is whether a rational and
informed investor would have had a plausible
motive to take on a particular asset and level
of risk. And equally crucial, how strong was
the motive of the seller to sell? Was this a
particularly lucrative item? It is the interplay
of motives - or lack thereof - on both sides
that reveals the truth.
What makes motives in the investment sector
unique is the dual-motive situation. In a
criminal case, only the suspect, either did or
did not have a motive to commit the crime,
not the victim. But in the financial sector,
there are potential motives on both sides of
the transaction. The buyer is motivated by the
desire to make a profit and the seller likewise.
If it was an essentially bad investment from
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14 the barrister the start, but one that made money for the
seller, on a balance of probabilities, this was
a misselling. If, on the other hand, the asset
was basically sound, but went wrong for
egitimate reasons beyond the control of the
seller, there should be no damages claim.
Motives and the perennial conflict of interest
The intrinsic problem in the investment
ndustry is that higher-risk investments
are more profitable for the seller than low-
risk ones. Simultaneously, however, the
nvestment literature has demonstrated quite
clearly that most people are risk averse.Finally, investment psychologists have proven
that people suffer more from losses than they
enjoy the equivalent level of gains.
This means that in both psychological and
financial terms, sellers are more likely to
push high-risk products than buyers are to
buy them - knowingly and deliberately, that
s. There is probably nothing more important
n the context of investment motives than this
point. In the absence of clear and convincing
evidence of risk-friendliness or risk-aversion,
t should be assumed that investors want a
moderate to low level of risk. Few investors
are really risk friendly, and certainly not
those who really cannot afford to lose money.
Irrational versus rational high risk
Even if someone is really risk friendly,
such motives cannot be ascribed unless the
nvestment made sense. A truly adventurous
nvestor will obviously still attempt to avoid
stupid risks that are statistically likely to
end in disaster. If the investment in question
was, to put it bluntly, quite mad, it is absurd
to assume that the person really understood
and wanted it.
For instance, an 80 year old lady would be
rrational indeed to put 80% of her assets
nto the stock market, particularly if equities
were relatively expensive at the time. Even
a 45 year old man would be very foolish to
have such an undiversified and all-the-eggs-
in-one-basket portfolio. On the other hand,
a stockbroker would have a very compelling
motive to foist such an investment on the
unwary. After all, that is his stock in trade
and he does well out of the deal.
Similarly, no one would invest a large
proportion of his/her wealth in what is
nothing more than a so-called closet tracker,
a standard collection of equities that simply
goes up and down with the market. There is
no motive for the buyer in this instance, butthe seller, once again, earns handsomely from
a low-maintenance product. The point is that
if the investor wanted to buy the market,
he would do through a real index tracker at
lower cost and complete transparency.
Talking of transparency, excessively complex
and cost-laden certificates or insurance
policies which are commission-heavy and
financially inefficient are similarly purchased
only by the nave and exploitable. To ascribe
implausible motives after the fact is an old
trick, and a very unjust one.
Where people are genuinely risk friendly, they
would invest in a sensibly diversified portfolio
of high-risk assets, such as a prudent mix of
foreign funds or corporate bonds, venture
capital, hard assets etc. The prices of theseassets would also not be inflated, but fair
and with the promise of good rates of return.
Furthermore, they would normally ensure
that the portfolio is monitored regularly and
managed actively.
If such investment/s go wrong, it will, in most
cases, subsequently be quite clear that there
was a valid and rational motive to take the
risks at the time of investment. This is a far
cry from post-loss allegations that an investor
understood and wanted an investment that
really made no sense at the time for the
buyer, but was clearly beneficial to the seller.
Especially in the context of a risky portfolio,
passivity and reliance on the fund manager
are signs of an inexperienced investor who
was taken for a ride.
A continuum of probabilities and the zone of
uncertainty
The above examples are particularly clear
cut, but this is not always the case.
In terms of motive to buy, investments run
the gamut from being totally undesirable to
extremely promising. Subject to the crucialcondition that the investor understands
the true level of risk and real nature of the
investment, the likelihood of a knowing and
deliberate purchase can therefore be divided
into five groups along a continuum:
1. Impossible a clear dud that any genuinely
experienced, fully informed and rational
investor would avoid
2. Unlikely
3. Possible
4. Probable
5. Definitely an outstanding investment.
The extreme positions of 1 and 5 are crystal
clear, and 2 and 4 should also not present
major investigative problems. Number 3 is
more problematic. But even so, it is generally
possible to determine whether one is dealingwith a reasonable, rational investment
that went wrong, as such things can, or
whether this was a misselling, an unsuitable
investment or something even worse.
The continuum and the associated motives
to invest are also subject to the usual key
contextual factors, such as the investors
age, personal circumstances and risk profile.
And lets not forget the state of the market
at the time of investment! There is no
plausible motive to plunge in grand style into
overheated and euphoric markets.
Irrationality and Mistakes
There are indeed people who get carried away
by greed, but in such instances, one needs to
look for credible evidence of behaviour of this
kind, and at the seller in order to establish
whether meaningful warnings should have
been and were given. Such a warning must go
considerably beyond small print stating that
the value of your investment may go down
as well as up. Particularly, but not only where
there is a duty of care to the investor, any
honest and indeed prudent firm would ensure
that an appropriate warning is issued to the
buyer that the investment is risky and may notbe suitable.
Similarly, customers who simply make
mistakes are not necessarily liable for them.
Where a mistake was indeed made, the
motive was then misconceived, being based
on misunderstanding, ignorance or deceit and
thus not genuine. Accordingly, depending on
the selling situation and the attendant legal
and ethical obligations, a serious mistake on
the part of the buyer is not much of a defence.
Conclusions
Why would an investor go ahead with
a particular purchase? There has to be
something in it for them, unless they are
irrational, crazy, making a mistake or the
victim of some form of misselling. Most acts of
investment cannot fairly be attributed to greed,
imprudence or error, and neither should such
behaviour constitute a defence for the seller,
beyond true execution only situations. The
person must stand to gain something, or havereason to believe that this is the case - if there
are to be claims that he agreed to it knowingly
and deliberately.
Motive is a reliable behavioural guide in the
financial services industry. But the motives
on both sides count, those of the buyer and
the seller, and it is the plausibility in the
interrelationship that reveal who did what
and why. A comprehensive investigation of
the actors on both sides of the transaction
is indispensible. This includes the
circumstances, laws, obligations and nature
of the investments themselves. On this basis,
firms, courts and ombudsmen should make
decisions as to negligence, misselling and
awards of damages.
------------------------------------------------------
Dr. Brian Bloch
FATM - University of Muenster
Fliednerstrasse 21
48149 MuensterGermany
Tel: +49(0)251 83 29921 (office)
Tel: +49(0) 251 857 0199 (home)
Fax: 0049 (0) 251 83 31438
Main email:
Alternative email:
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15 the barrister
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Change you can believe in: What new rightsagainst associative discrimination mean forclaimants
By Matthew J Smith BA Oxon, PGDL Brookes, LLM Inns of Court School of Law
1. COLEMAN v ATTRIDGE LAW
The recent European Courtof Justice case of Coleman v
Attridge Law 1 demonstratesthe potentially radical
changes the Tribunal Systemcan affect in day-to-day life.
Sharon Coleman worked as a legal secretaryfor a firm of solicitors called Attridge Law.Her son was disabled within the meaningof the Disability Discrimination Act 1995.She was not. His disability required that shetake more time off and consequently morepaid leave to care for her son. Attridge Lawrefused to grant her the same flexibilityn her working arrangements as those of
colleagues with non-disabled children. Shewas then subjected to disciplinary action andAttridge Law failed to deal properly with aformal grievance she lodged against her ill-treatment. Sponsored by the Commission forEquality and Human Rights she brought aclaim for constructive dismissal and disabilitydiscrimination against the firm.
At the prehearing review the tribunalchair decided that the question of whetherdiscrimination by way of association with adisabled person is prohibited by the EqualTreatment Framework Directive 2 should bereferred for a preliminary ruling. On 17thJuly 2008 the ECJ decided that the Directiveand, in particular, Articles 1 3 , 2(1) 4 and (2)(a)5 had to be interpreted as meaning thatthe prohibition of direct discrimination laiddown by those provisions was not limitedonly to people who were themselves disabled.Moreover, Articles 1 and 2(1) of the Directivehad to be interpreted as meaning that theprohibition of harassment laid down by thoseprovisions was not limited to applicants whowere themselves actually disabled. SharonColeman, as an associate, was found to havean action against Attridge Law for disabilitydiscrimination and harassment.On 2nd April 2009, nearly a year on,Harriet Harmans Equality Bill if enacted will extend the law ondirect discrimination to includediscrimination by association and
perception to disability, sex, genderreassignment and age in both theemployment field.
This article considers where a Coleman claim
might emerge and the difficulties posed byexisting arrangements which associates willstill need to overcome in order to bring theircases to tribunal.
2. WHO BENEFITS? ASSOCIATED CARERS
The first group of beneficiaries are associates.But where is the greatest incidence of association? There are currently 6 millionpeople providing unpaid care in Britain, mostof which are women. Moreover 2.6 millionemployees juggle the role of unpaid carer withtheir job 6 . Carers UK 7 have raised the profileof carers who find themselves in the sameposition as Sharon Coleman. In the contextof an ageing population, greater medicalrecognition of psychological and anxietyrelated conditions, cultural diversificationand changes in government policy pertainingto schooling for the mentally disabled and theshift from care in the community to care inthe home are all factors contributing to theneed to re-assess the rights of carers andassociates of disabled individuals.
Progress in the understanding of disabilityThe status quo before Coleman arguablysaw disability discrimination law in the UKfail to keep pace with our understanding of disability as society has evolved. The greatmajority of disability discrimination claimsturn on whether someone actually succeedsin being classified as being disabled. Nowif someone is sacked from work owing toabsences related to depression, then theirclaims no longer exist purely in unfairdismissal alone, now they also arise underdisability discrimination.
Discrimination based on perceptionThis is an area that still needs clarity. If there is a perceived disability, how do youprove this? This issue is especially relevant
to cases which concern perceived illness.Instances of discrimination against anindividual on the basis of perceived disabilityis also complicated because barristers aredealing with the infliction of an act which in
itself tends to cause an illness in the form of stress. These situations might also involvereligion and belief for instance there maybe cases where in a civil marriage one partyis a Muslim, the other is not and adoptsand Islamic surname. However issues of association and perception occur far morefrequently in cases of disability 8.
Sale of goods and service cases A major source of such claims in associativediscrimination will be sale of goods andservices cases. These are situations such aswhere someone tries to enter a cafe attendedby a disabled person and is turned awaybecause of their disabled partner. Similarlyone can imagine the scenario of a disabledperson trying to get into a nightclub and hisor her associates being turned away becauseof their disabled partner.
INTERSECTIONAL DISCRIMINATIONClaims of an intersectional nature havethe potential to multiply the likelihood of discrimination by association. In Bahl v The
Law Society 9, an Asian woman claimed thatshe had been subjected to discriminatorytreatment both on the grounds that she was
Asian and also on the grounds that she wasa woman. The Court of Appeal preferred totry discrimination in this case under separateheads. The powerful minority judgmentof Madame Justice LHeureux Dub in thecase of Canada (A.G.) v Mossop 10 stated: ...categories of discrimination may overlap, andindividuals may suffer historical exclusionon the basis of both race and gender, ageand physical handicap, or some othercombination.
Sexually transmitted diseasesDiscrimination law practitioners mightanticipate claims of an intersectional natureinvolving those who cared for people withHIV and groups with whom HIV is associated
in the public mind such as gay men, black Africans, injecting drug users, familymembers of those injected with HIV, carersand health professionals working in the field.
Cultural differences Associative Discrimination claims may arisein different measures across different culturalgroups. It is an established fact that becauseof social changes, an increasing proportionof single mothers in the UK are of AfroCaribbean origin. Furthermore, anothercultural factor at work here is the number of
Asian families and households where thereare more than one generation live under thesame household stonetime.co.uk 11 .
WomenThere is also talk of the Sandwichphenomena. This concerns women in their30s and 40s who have young kids and elderlyparents.
Poverty Viewing discrimination law in its propersocial context, the state of being a carer isin a large part a correlative of being poor.Instances of associative discrimination aregoing to hit the most vulnerable people first.There is a practical question to be askedhere: What length does a parent go to supporttheir disabled child? Do they go as far as tolose their job?
YES WE CAN?The press made much was made of thegeneral phenomenon of floods of claimsresulting not from changes in the statutebut changes in the case law. This generatedthe impression that Coleman had grantedthe right to reasonable adjustments tocarers of disabled children. In reality SarahColeman was found to have rights in directdiscrimination and harassment. Coleman istherefore limited to old fashioned prejudicecases, direct and indirect discriminationcases and harassment. Moreover the ironymight be that in all probability Colemanactions will make up only a small number of disability discrimination cases.
PRACTICAL DIFFICULTIESReferral agenciesCommunity Advice Bureaus and Law Centreswill have little involvement here preciselybecause there is no legal aid funding fordiscrimination law claims. Moreover thefinancial incentive for referral agents to take upvolume cases creates difficulties for claimantsin associative disability discrimination cases.
Associative discrimination cases will make upa much smaller proportion of cases overall.
These cases may prove to be too complexand require the attention of committedpractitioners.
Employment law BarHow prepared is the employment law bar?There is no legal aid for discriminationlaw work. People suffering this form of discrimination are going to be poor people,vulnerable people. It is very rare then thatthese cases are going to be picked up bysolicitors and barristers. If Sarah Colemanhad a sufficiently high paid job she wouldhave paid for a nanny and there would havebeen no problem in the first place. The mostimportant practitioners in this field will turnout to be those who will feel that associativediscrimination needs to be pushed as part of the wider social landscape.
Tribunals Associative discrimination is like any legaldevelopment. The effectiveness of a legalright depends on how receptive a judge is toit. Judges will need to act fairly and speedily. If a claimant in Sharon Colemans position wasfaced with a hectoring cross examination,this would have to be stopped by a tribunalchair acting within the Overriding Objective.
General awarenessFrequently somebody who is mentallydisabled will not be aware that they aresubject to acts that are intended to causeinjury and hurt to feelings. People in thecaring professions are potentially veryvulnerable. In many situations, claims will bea last resort. Sarah Coleman had the benefitof good advice at an early stage.
Employers At the end of the day it is employers who willdrive changes in this area. This is a questionof accommodation. Employers will want tostay ahead of the game because they want acompliant workforce. Employers will addressassociative discrimination and orientate theirpolicies appropriately irrespective of whatthe law says.
HOPE SPRINGS ETERNALThe emergence of rights against discriminationfor associates highlights the extent to whichdiscrimination law can be conceptualised as asocial weapon. It will be interesting to see howintersectional and associative discriminationdevelop in terms of the language used beforetribunals. How long will it be before we startthinking of employment law in terms of human rights? It could be argued that humanrights could well encapsulate intersectionaland associative discrimination.
Equality meaningfully understood consistsof human dignity and personal autonomy.One way of undermining the dignity andautonomy of people who belong to a certaingroup is to target not them, but third personswho are closely associated with them and donot themselves belong to the group. A robustconception of equality entails that thesesubtler forms of discrimination should alsobe caught by anti-discrimination legislation.In the words of Sharon Coleman, we are onestep nearer to stopping people with caringresponsibilities like me from being badlytreated and harassed at work. It has takena lot of courage to fight this case, but no-oneshould have to choose between caring fordisabled relatives or their job 12 .
1Coleman v Attridge Law C303/062EC Equal Treatment Framework Directive2000/78 Establishing a framework for equaltreatment in employment and occupation,formally adopted on 27th November 2000.3The purpose of this Directive is to lay downa general framework for combating discrimi-nation on the grounds of religion or belief,disability, age or sexual orientation as regardsemployment and occupation, with a view toputting into effect in the Member States theprinciple of equal treatment.4For the purposes of this Directive, the prin-ciple of equal treatment shall mean that thereshall be no direct or indirect discriminationwhatsoever on any of the grounds referred to in
Article 1.5For the purposes of paragraph 1: (a) directdiscrimination shall be taken to occur whereone person is treated less favourably thananother is, has been or would be treated in acomparable situation, on any of the grounds re-ferred to in Article 1; (b) indirect discriminationshall be taken to occur where an apparentlyneutral provision, criterion or practice wouldput persons having a particular religion orbelief, a particular disability, a particular age,or a particular sexual orientation at a particulardisadvantage compared with other personsunless: (i) that provision, criterion or practiceis objectively justified by a legitimate aim andthe means of achieving that aim are appropri-ate and necessary, or (ii) as regards personswith a particular disability, the employer or anyperson or organisation to whom this Directiveapplies, is obliged, under national legislation,to take appropriate measures in line with theprinciples contained in Article 5 in order toeliminate disadvantages entailed by such provi-sion, criterion or practice.6Carers UK.7www.carersuk.org8 Appendix V: SR 49[2004] IRLR 79910 [1993] 1 SCR 554 at p 64511 Appendix V: JIL 2012 Commission for Equality and Human Rights:Mothers landmark legal victory could heraldnew rights for Britains six million carers.
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8/9/2019 Barrister Magazine issue 41
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18 the barrister
Jackson: a review for reviews sake or avaliant effort?By Bob Gordon , CEO, 1st Class legal
On 8 May the attention of
the legal world turnedto the subject of civillitigation costs as JacksonLJ revealed the terms of
reference of his year-longreview of the matter in his preliminary report.
The subject of reducing litigation costs is
close to most lawyers hearts as it is critical toLondons competitiveness as an internationalcentre for litigation and we all have avested interest in preventing any further
oss of ground to the worlds other centres.Whilst we lead on matters of certainty of law,transparency of process and enforceabilityof our judgments in other jurisdictions, we
cannot say the same when it comes to thematter of cost: on this point our competitorshave some advantage.
So the various strands of the professionmay be united in a keenness to reduceitigation costs, however this does not mean
that everyone has welcomed the idea of LJ
Jacksons review, despite its promise of afundamental re-think of issues dear to theirhearts. Indeed some commentators havegone on record to say that far from needinga new set of rules to help contain costs, what
s far more needed is for the rules that wehave in place already to be followed by thosemanaging and judging cases. Other cynicsclaim the idea of a fresh review is doomed
from the start, as its roots are in the abjectfailure of the Woolf reforms to control the costof civil justice. Immediate reactions from thebig law firms as the 1,000-page preliminary
report was published on 8 May ranged fromOh God! Its so big! (David Green, Chair of
the London Solicitors Litigation Association),to Here we go again another review for
reviews sake (anonymous senior partner)to A valiant effort.. that helpfully articulatesthe issues (Clare Canning, partner inthe Litigation & Disputes team at Mayer
Brown) to The report is neutral in tone andapparently free from political interference.
As a consequencehas the real potential to
deliver (Anthony Hughes, president of theForum of Insurance Lawyers).
One of the main discussion points around
the Jackson Review, particularly within themedia reports surrounding it, and in the
corridors of law firms around the City and inthe regions, as well as at the Bar, concerns
the English Costs Rule - the award of costsagainst an unsuccessful party and whetherit is now time to adopt a different approach.Certainly media reports to date have focused
on LJ Jacksons apparent leaning towards themodernisation of conditional fee agreements.The English Costs Rule certainly has its flaws,but is this alternative that is most often talked
any better? Or to put the question anotherway, could this pave the way for the typeof litigation excesses that commentatorscomplain of in the US, where a mischievous
plaintiff bears virtually no risk of having topay the other side's costs in addition to theirown, and where the existence of ContingencyFee Arrangements means that even if they
lose, their own costs are covered by thearrangement with their lawyers: thus thesemischievous plaintiffs quite literally havenothing to lose by bringing the most spuriousclaims. Inde