Live and studying ate my time. I’ll be getting it back in a week or so. I’ve written my first substantive draft post in twenty months, and it felt good.
Of course. I’m not quite finished with the studying yet. Matter of weeks. Finally.
I hadn’t realised it had been over a year since I had written anything here. I have the usual Open University Student excuse: not enough hours in the day to work, study, have an occasional social life, and spend time with your partner. For the same reason my tenure of the OULS vice-presidency was relatively short–lived: but at the same time, so was the tenure of several others. We didn’t change the nature of a law society formed of students with day–jobs; it was in retrospect foolish to think otherwise.
I had an incredibly busy year last year rolling out an IT refresh to 700+ retail units in ten months — a big, complex and time–consuming task that, while done well and to the satisfaction of everyone involved, not something I’d want to do again immediately.
I have no idea if I’m going to be able to post regularly. But hopefully I’ll be able to comment in my usually way — on odd and minor legal matters that may have escaped the attention of the big law bloggers out there.
That’s me, that is, for 2011-12. I’m honoured.
The Open University Law Society has been pretty quiet for a few years now; I think it had in fact been moribund before last years’ committee got it going again. I’m glad to be be involved at the outset of this effectively new society — there are many ways in which a strong and active society can benefit OU law students. We suffer a number of significant challenges in terms of law–related extracurricular activities in comparison to traditional law students given the spread of OU law students throughout the UK.
There are some ways in which the society can directly help with extracurricular activities. Mooting is an obvious example, and one in which we should become much more active. Others, such as helping people with law–related volunteering and similar activities, are more difficult — but we should at least be able to act as a repository and conduit of information about activities that are particularly suitable for OU students.
We want to act as a method of making the Open University take heed of the concerns of law students. It’s good that the faculty is prepared to both listen and act at the moment — we aim to capitalise on this and enable students to have a powerful say in shaping the OU law degree.
The one thing we can’t do is anticipate every suggestion on how the society can help students with extracurricular activities and to make the OU law degree of even more value. And to that end, I’d love to hear from anyone with thoughts or suggestions. The committee are still finding their feet at the moment, but the sooner we hear from people the sooner we can collate a programme of work for us for the coming year.
I had to face a quandary today — am I a legal commentator or not? I write a blog, which has been known to discuss legal matters in the public awareness, or indeed comment on individual cases, from time to time. But is that enough? And does it even matter?
The reason for this thought is that the Lord Chief Justice has today issued a new practice guideline, covering who may tweet, or use other forms of text-based communication, from inside the courtroom. A “journalist or legal commentator” is not required to ask permission before doing so, everyone else is required to ask permission of the presiding judge.
There is a problem in this guidance though. There is no test to identify who is a legal commentator. Journalists are usually able to relatively easily identify themselves as such if challenged. However, there is no single identifying feature for the disparate group of us who from time to time comment on the law. Should we carry a printout of our blog, perhaps?
So is the category of legal commentator of any use to individuals? I suspect not. If I tweet from court without asking on the basis that I am a legal commentator, I doubt asserting that I am would aid me if the judge notices that I haven’t asked and hauls me up to explain myself under threat of the provisions in the Contempt of Court Act.
Therefore, even if I consider myself a legal commentator, I would submit that, for other than accredited journalists, the best course of action is always to ask permission of the presiding judge, via the court staff. The practice guidance, by its lack of definition of who are members of its permitted categories of tweeters, leaves too much room for misunderstanding. As in individual, I wouldn’t want to run the risk of any such misunderstanding causing me grief.
Getting up and talking in front of people is one of these activities that does not often come naturally. I have been doing in different ways from around the age of 13 — the thick end of thirty years, now. I have done it in a wide range of forms — on stage in plays and public speaking competitions at school and university. Presentations to clients and to audiences of peers at work–related conferences and events. I have pitched for work, I have spoken at family celebrations. I have toasted friends and colleagues, I have been the anonymous voice telling audiences what to do on leaving the theatre. You think I’d be used to it by now.
Not really. It’s true that skills become more finely–honed by practice. It’s easier for me to flow whilst speaking now — the words come easier, take a shape and a structure, hit the points I wish to make and leave the audience (I hope!) content with what I have expressed and the way in which I have expressed it.
But I’m not a natural public speaker. The thought of standing up and saying things to other people used to scare the living daylights out of me. Actually doing it was not much better — and the window just before starting was particularly horrible. It took an effort of will for me to stand out there and speak. Some people can do this without apparent effort. Most people cannot.
But one of the things that made it easier was the preparation. On the stage, I’m in costume and makeup, performing the rôle. On a stage at a technical conference, I (now) have my own little rituals of preparation. Even toasting my Dad’s birthday, I still draw myself together, neaten the shirt, smooth the tie, prepare to be watched as much as listened to.
I read today that in the Supreme Court, that (if all advocates agree) the wearing of formal court dress — wig and gown — can be dispensed with. I fervently hope that this practice is seen to be an exception, and does not become extended to the lower courts. There are several reasons for me thinking this.
Firstly, the fact that the justices of the Supreme Court do not wear robes or wigs is a historical accident. The behaviour was imported to the Supreme Court from its predecessor body, the Judicial Committee of the House of Lords, which maintained the fiction that it was not actually a court and therefore its members dressed in day dress, not court robes.
Secondly, there is no scientifically reliable evidence on whether anyone thinks how advocates or judges dress (with one exception) matters. The exception is the Family Court, where the requirement to put vulnerable or young witnesses in as familiar an environment as a court can be made to be, should (rightly, I believe) be paramount. Apart from that though, there is no serious statistically rigorous research done on the question. And simplistic questioning will get the simplistic answer. But the level of answer is only limited by the questioner — I could frame a question that would get criminal cases at the Crown Court heard by someone wearing a black trackie, with lilac and red piping, no problem!
So now that change for historical reasons and for perception reasons are eliminated, I want to set out my stand. As a very junior potential future advocate, I like the wig and robe. Even though I have never worn one.
I believe it allows people to step beyond themselves, and assume the rôle.
We are asked to take whatever case we are given, whether we believe in it or not. We are asked to prosecute the potentially innocent and decent the potentially guilty, without fear or favour. The cab rank rule applies — we have no say in the cases that are given to us. And those are good and necessary things for the administration of justice. One of the counterbalances to this in my view, however, is that it is important, especially for those new to advocacy, is to physically have the act of being the advocate, and the act of becoming the individual again. The distinction between individual and job performed. And, for a lot of people (and I hope to be one of them) this is signified by the putting on of the wig and gown.
It’s the assumption of the rôle, the preparatory step that takes you beyond yourself as an individual. The donning of the wig and gown is the physical act that turns the person into the rôle. Game on, as it were.
At the levels of the Supreme Court, at which only the most competent, the most in command, the most skilled are ever likely to practise — I can see that there is not necessarily any need for the advocates and barristers there to be in court dress. However, in the lower courts, there are many people who take some comfort in the wig and gown. I know I will. It may seem to be a trivial thing, an anachronism in this day and age. But to those who wear it and those who aspire to wear it, it can represent something that is the representation of something more important than themselves as a person.
I realise this is an entirely emotional argument, and one that can be easily countered. Is it therefore a just a cypher that I look up to? Maybe I need to find another less physical mantra that allows me to go “game on”. But given that there is no statistically rigorous evidence that anyone finds the wig and gown to be an issue (let alone comparatively how important an issue), and given that I like its ability to step me out of “me” and into what I need to do — let’s ignore this for a bit. I’ll keep the wig and gown I hope to wear, if that’s all right. I’ll ditch them in an instant if if anyone can prove that people think that matters.
Sometime ago I posted a link to another blog containing a link to a degree classification calculator for Open University degrees. However, the way the classification is calculated for OU law degrees is slightly different. Luckily, it’s pretty simple to work out.
The OU law degree consists of 4 mandatory courses: W200, W201, W300 and W301. For W200 and W201, multiply your grade (1−−4) for each course by 60. For W300 and W301, multiply it by 120 (to reflect the degree of significance for these courses). Take those four numbers and add them together. Their sum will give your class of degree:
- 630 or fewer — First class honours
- 631−−900 — Upper second class honours
- 901−−1170 — Lower second class honours
- 1171 or more — Third class honours
There is one trick to this. If you have a poor result in either W200 or W201, you can replace half of it with a better result in one of the law short courses: W221, W222, W223 or W224. For example:
Grade 3 pass of W200: 3 × 60 = 180 points.
Grade 3 pass of W200 and a Grade 1 pass of W223: 3 × 30 plus 1 × 30 = 120 points
That can be enough to pull you up a grade!
Just for completeness — while you need to sit 360 points’ worth of courses, it is (with the exception noted above) only the 240 points of the mandatory law courses that count to your law degree classification.
Source: (and a really useful read for all OU law students) Choosing your path to an Open University Law degree: a guide
My gut instinct regarding my last post on Royal and Sun Alliance Insurance’s business structure increasing the costs of accident repair was that it was unlikely to be the end of the matter. Permission had been granted to appeal; I fully expected to see the matter be resolved there. But that would only determine the law as it applied to the factual matrix of the case in question. That approach would be unlikely to help other cases much — it would be open to argue that the factual matrix was sufficiently different that the appeal judgment did not apply. This clearly would not address the core question.
Provident Insurance has decided though to take a different approach: to seek determination from the Commercial Court — a specialist branch of the Queen’s Bench Division of the High Court — as to whether RSAI’s commercial model is legally correct. In the case I last wrote about, it was held (at County Court level) that it was not, but clearly there has been a difference of opinion between County Courts. RSAI has agreed that it’s desirable that its business practice in question be tested for legality.
So in Coles & Ors v Hetherton & Ors  EWCH 2405 (Comm) Provident and RSAI have both brought claims between themselves in the High Court itself (normally they are precluded from doing so because of the likely size of award), and transferred in cases from the County Courts. The next step will be the selection of lead cases in this matter.
This is all at a very early stage, but it has potentially far–reaching effects. The lead cases will determine the shape of the case as it will be heard, but there are more situations than just vehicle repair paid by an insurer where a corporation’s internal group structure can lead to additional costs being passed to the person who ultimately pays. In the case previously mentioned it was entirely unclear why additional costs were levied by the intermediate insurer–owned company, and this is why some County Courts have rejected such additional costs.
However, there could be potential situations where such additional charging was transparent, and also necessitated by a business structure chosen for legitimate other reasons, for example tax minimisation. Whether increasing the cost to the end consumer in order to achieve an unrelated advantageous financial outcome for the company as a whole is the ultimate question here, and one that is very interesting indeed.
Mr Fallows’ car was damaged by a vehicle owned by the defendants. Liability was not an issue. Mr. Fallows’ vehicle was insured by Royal and Sun Alliance, who sought to recover their costs from the defendant’s insurers. The costs were £1825.53. Not a large sum. However, the defendants objected.
The reason for the objection was that Royal and Sun Alliance arranged repair via a wholly-owned subsidiary, which then contracted with a subcontractor, who actually repaired the vehicle. The subcontractor billed the subsidiary the sum of £1542.78. The subsidiary added on further costs, and billed Royal and Sun Alliance.
In Romford County Court, the defendants questioned the sum claimed. It was held that, given the duty to mitigate, the best evidence of reasonable cost of repairs was that which RSA’s subsidiary negotiated with the subcontractor. There was no evidence that RSA itself could only negotiate a higher price. While administration costs have been allowed by the courts in the past, there are no decisions allowing them to a subrogated insurer, let alone a subrogated insurer’s subsidary. And in counterbalance, there are decisions where administration costs have been disallowed.
The Judge (Platt J) said:
Since RSAARL is wholly owned by RSA the effect of these extra charges if they are paid by defendants is simply to boost RSA Group’s profits beyond the actual cost of repair by the margins inserted by RSAARL. I can find no basis in law for saying that this is a course of action which a claimant insurer is entitled to take [..]. On the evidence the defendant has clearly established a failure to mitigate on the part of the claimant.
Now that this judgment is public, the utility of this business arrangement to RSA is probably moot. Other insurers could use the same model. This however was found to be likely to lead to an increase in costs to the insured members of the public of some 25%.
RSA were held liable in costs to the defendant — exceedingly unusual in a small claim. Even though they were the claimant, they almost completely failed to comply with pre–action protocol and with the court–ordered discovery process. For example, the existence of a formal invoice from the repairer to RSA’s subsidiary was not disclosed, even once its existence had become apparent during the trial.
Permission was given to appeal.
Judgment in the case can be found on BAILII at Fallows v. Harkers Transport (A Firm)  EW Misc 16.
Data storage in the cloud is clearly the where things are moving just now. Given the plethora of devices people have — computers at home, laptops and tablets on the move, smartphones in the pocket, it makes perfect sense for all of a person’s devices to use a single, common repository for shared information. Services such as Apple’s forthcoming iCloud at the domestic level, and commonly–used services such as Google’s Google Apps, Salesforce.com and Microsoft’s Office 365 all store your data in their own clouds.
You’d think that this would be done with respect to Data Protection laws. Wrong. If the USA wants your data, the USA gets it. My friends Simon Bisson and Mary Branscombe have the details: regardless of European privacy directives and the UK Data protection act, the US see the PATRIOT act overriding these for US companies and EU subsidiaries of US companies:
That means that US government can (under the auspices of the act) request the data of any individual or company that’s using US-owned or hosted services, no matter where that data is actually being held. It doesn’t matter if you’ve geo-locked your data, and it only resides in European data centres, it can still be requisitioned and taken to the US. Yes, it’s an issue of national security, but when results can be found by machine learning and trawling massive data sets (the larger the better), there’s a temptation for governments to take all they can and more.
Undoubtedly this will lead to much hand–wringing in the EU Parliament. However, what can be done? It is unlikely that the USA will give up their powers.
Therefore, the only solution is in the hands of individuals and companies wishing to use cloud services — only use cloud services from wholly–EU–owned companies hosting your data inside the EU. While the legal protections you will have in those circumstances are not huge, they are better than none at all.
Oh — an afterthought. How happy do you now feel, if perhaps you have just given a whole heap of your personal information to Google, during the Google Plus sign–up process?
Back in the middle of may, I had just finished studying my judicial review modules on my law course, and I thought it would be a good use of a free day to head to court to see judicial review in practice. As luck would have it, there was a case listed that day, the 16th May, at Manchester Civil Justice Centre:
R (Chief Constable of Manchester Police) v Salford City Magistrates, case CO/3649/2011
Interesting, thought I. There had been a few cases in my notes where a decision of a Magistrates Court had been judicially reviewed, but not any on the behest of the police. I decided to attend.
Of course, this case is now known as Hookway. I really couldn’t have chosen a better case to sit in upon, in terms of its repercussions.
The problem highlighted by the case can be summarised pretty quickly. Once the police arrest someone, they only have a certain number of hours to question them before they must be released. That time can be extended, but only to a point. The question is, when a person is released on bail, is the “clock” still running, or has it been paused?
It has been police practice to assume the latter as long as the current régime, introduced in the Police and Criminal Evidence Act 1984, has been in force; but the sections in question — 41 to 47 — are remarkably unclear, and in fact make no mention of the clock stopping.
In the court itself, there were eight people. Mr Justice McCombe, the court clerk, one usher, two policemen, one police solicitor, Ms. A Whyte QC, and me. Salford Magistrates and Paul Hookway were not represented.
Everyone in the courtroom that day knew this application was difficult, and that it had consequences. Everyone was fully aware that the repercussions of upholding the lower court’s ruling would be far–reaching. Ms. Whyte QC ably led the court through the complexities of the legislation, pointing out, entirely fairly given that the defendants did not appear, the perspective from both sides of the argument. There was absolutely no previous authority on the question, and only one academic work (which was not on point to the question at hand). The Judge and Ms Whyte slowly and carefully picked their way through the six relevant sections of the act, taking over two hours to do so.
It was hugely interesting to watch these people dissecting the sections of the act in various ways, trying to tease out the precise meaning of the words of the act. Serious people, at a serious task.
Sadly, I was unable to attend the handing–down of the judgment, which happened on Thursday the 19th May. The judgment wasn’t made public until the middle of June — and then, of course, there has been the usual raft of publicity. While there has been some reasonable coverage in the press, it’s sad to see that coverage descended rapidly in the BBC and the Guardian.
Today, two developments have occurred. The Supreme Court have turned down a request for a stay of the ruling, prior to their hearing an appeal from it on the 25th of July. And on Thursday, the Government are introducing legislation to overturn the ruling.
While the details of the legislation are yet to be published, it is very likely that they will change the law to how it was believed to be prior to the ruling in Hookway. This may be a missed opportunity. Letters in the Guardian suggest police bail can be abused, by the imposition of restrictions during bail. Rather than enact in law a patch to re-establish the status quo, might it be time to take a long look at the legislation surrounding arrest, detention and bail, and re–enact it to get rid of its inconsistencies, lack of clarity, and exploits?