Thursday, 16 March 2017

When is close of business?

Close of business
Ah – ‘close of business’. What a phrase. At least it’s not quite as bad as ‘close of play’.

These curious expressions which are frequently bandied about in offices throughout the western world are intended, of course, to mean the end of the working day. (Whatever the hell that is – particularly in today’s world of taking work home, answering work emails late into the evening and sleeping with a smartphone under your pillow. No wonder we’re all quivering wrecks.)

A recent case considered this very issue. No – not the quivering wrecks thing – but when ‘close of business’ occurs. The case, for those of you who might be interested, was Lehman Brothers International (Europe) (In Administration) v Exxonmobil Financial Services BV [2016] EWHC 2699 (Comm).

The claimant, Lehman Brothers, provided equities and bonds to the defendant, ExxonMobil, under a securities agreement. ExxonMobil sent a default valuation notice to Lehman Brothers, which, to be valid, needed to be received by 'close of business' by Lehman Brothers on the relevant day. The notice was sent by fax and was received by Lehman Brothers' London office at 6.02pm.

To determine whether the notice was valid under the agreement, the court had to consider when ‘close of business’ occurred. Lehman Brothers argued that 'close of business' in London was 5.00pm – meaning the notice had arrived too late and should be deemed to have been received the following day. ExxonMobil contended that 'close of business' was 7.00pm – meaning the notice was in time and therefore valid.

The court accepted ExxonMobil’s contention that, as the claimant, the onus was on Lehman Brothers to establish when the close of business had occurred for the purposes of the agreement. Crucially, Lehman Brothers adduced no admissible evidence on this point. Silly them.

The wording of the contract was such that the validity of the notice turned on the precise meaning of the term 'close of business for commercial banks in London’. From a contractual certainty standpoint, this still isn’t great, but at least it’s a bit narrower than ‘close of business’.

Lehman Brothers argued that this phrase meant 'normal business hours' as worked by ordinary businesses and high street banks. The court acknowledged that 'commercial bank' was not a term of art in English law, but accepted ExxonMobil's argument that, in the modern world, commercial banks closed at about 7.00 pm. The judge emphasised, however, that this was a finding of fact limited to the instant case. Consequently, it was held that, for the purposes of the agreement, ‘close of business’ meant 7.00pm. The valuation notice was therefore valid.

On use of the phrase ‘close of business’ generally, the judge said this:

[T]he term “close of business” on a particular day or date is a useful term which is used in many different contexts, including court orders. The present context is as to the time of receipt of notices in a standard form financial contract. Where the intent of such a contract is to impose a definite cut-off time in this regard, it can do so expressly [by stating a precise time.] The fact that the contract does not state a time, and uses the term “close of business” instead, gives a useful flexibility, and should deter arguments based on the precise time of receipt, which may make little commercial sense.

That’s an interesting point, but, as a school admissions officer might say, ‘you have to draw the line somewhere’. And when you’re dealing with contracts, it’s generally better if everyone knows where that line is going to be drawn.

From the perspective of contractual (and therefore commercial) certainty, there is simply no substitute for precision in the drafting of contracts. Close of business for one person might be very different to another person’s stance. The idea that use of a rather woolly phrase would help to deter quibbling over whether an action had or had not been taken in the required time makes me feel a bit uncomfortable. It didn’t exactly work in the present case, did it? But I take the court’s point as to it possibly helping in a day-to-day commercial pragmatism kind of thing. Maybe.

But here’s the acid test: if I saw that phrase in a contract I was reviewing, would I let it pass, or insist on it being substituted for a specific time?

The latter, you say? Yep – you’re damn right.

Sunday, 5 March 2017

All aboard the booger bus

bogey boy

Yep – it’s all a-happening down in Bristol.

From the Bristol Post 27/02/17:

A woman [called Sian, it seems] claims she was physically sick in the street after a passenger on a First Bus wiped a bogey on her leg.

Shocked and disgusted, she got off the bus and told First Bus she "puked in the middle of the street" in a complaint made on Twitter.

She said she wasn't sure if the incident was an accident or intentional but branded it "gross" in a series of outraged tweets.

"Some guy picked his nose next to me and left a boogie on my jeans," she wrote.

Responding to the complaint on social media, First Bus West of England said the incident should be reported to the police as an assault.

Sian said she would not be taking the matter any further as it was "just a boogie", instead asking for some complimentary bus tickets.

Her request, however, was rejected

Well – booger me. Poor Sian. Not even a complimentary ticket to ride the bus and have another opportunity for a passenger to, y’know, wipe snot all over her.  Sian – you’re a glutton for punishment.

Let’s face it: anything can happen on public transport. I was on a late-night train back from a client meeting in Leeds several years ago, when, towards the very end of the journey, I heard a curious loud rustling sound. It sounded much as though somebody was trying to scrunch up a sheet of baking parchment greaseproof paper. It happened a few times and I didn’t think anything of it until I suddenly became aware of everybody in front of me scrambling back in earnest.  This was followed, almost instantaneously, by a wave of very strong smell – something like spirit alcohol mixed with something I couldn’t quite place.

It quickly emerged that a young chap – he looked roughly in his mid-teens – had tried to consume his bodyweight in spirits and was now retching it up in the carriage. The rustling/scrunching sound was the contents of his stomach hitting the floor. Nice.

Suffice it to say, I, like my fellow passengers didn’t hang about, and was out of my seat in a flash and moving towards the back of the carriage like a scalded cat. The kid, thankfully, decided to get off at the next stop, but not before being admonished by the unimpressed train crew.

It’s a train journey that I won’t forget. A bit like this one.

I wonder if Michael Palin would be interested in reconstructing it for one of his ponderous railway shows…

Interestingly, this isn’t the first snot-related-possible-assault themed post that I’ve ever posted. Remember this?

Sunday, 19 February 2017

Law Actually is 10 years old today

Law Actually 10 years old

Yes - really.

I’ve posted quite a few birthday blog posts over the last – well – decade and, looking back, I always seem to start them by saying that I can’t believe Law Actually has been going so long.  (See here, here, here, here, here, here, here and here.)

Well, now this blog has reached double figures, I really can believe it. It feels like ten years.

I started Law Actually as a bit of lark; a creative outlet from the travails of studying law. It was probably my contrarian and rebellious streak coming out, plus a procrastination device to distract myself from preparing for seminars.

Ten years later, it feels like I’ve seen it all come and go in the blogosphere. (And I’m getting an increasing number of grey hairs to prove it.) The web and the world have moved on considerably since blogging was considered de rigueur. Now it feels like it’s something more to be ashamed of than celebrated and the sense of community in the ‘sphere has long since disappeared. I think I’ve grieved long enough over that loss. Life and things move on. I get it.

One thing I’ve found over the years is that I enjoy blogging more when I take it less seriously. People blog for all reasons, but mine is a sort of creative catharsis. I used to get as much (if not more) pleasure from playing in Photoshop creating a graphic to accompany the text as I did from the writing itself. I think my skills on both fronts have improved appreciably from those early days.

I’m conscious that I’ve subjected my readers and this blog to a lot of crap during the last decade. A few years back, it was little more than a bawdy-house for SEO where you couldn’t turn around for all the sponsored links and posts. Apologies for that. Sometimes blogging felt more like a chore than a pleasure in those days.

I’m going to make no predictions as to what the future will hold for me or this blog. But if I hang about in the blogosphere I want it to be on a no-strings, casual basis. If I post, I post. And if I don’t – well, it’s not the end of the world.

There are a lot of memories tied up in the thousand or so posts I’ve published. I’ve often found a lot of pleasure looking back through my archived posts; they stir up at least as many memories as a diary could have captured. And that’s pretty special.

So, thanks, Law Actually. In a bizarre sort of way, you’ve been a good, comforting friend over the years. And I’m really glad you’re here.

Have a great birthday. You deserve it.

Thursday, 16 February 2017

Nissan Micra driver reconceptualises traffic laws

(By which I mean, the driver decided to drive on the left but on the wrong side of a dual carriageway.)  It’s easily done. 

Ahem.

From Cornwall Live 14/02/17:

Shocking footage has captured the moment a Nissan Micra driver was caught on camera driving the wrong way down the busy A30 at rush hour.

[Bus Driver Jimmers] Thomas told Cornwall Live: "This little car bumbled past obliviously. I was very lucky to meet it by a layby where the road was wider, it's unbelievable that nobody was hurt."

He added that the car had a chance to pull in, but didn't seem interest in stopping.

[Wannabe highway cameraman] Jason Griffiths also posted this scary video with some strong language from this morning to Facebook [.]

But my favourite response was from Tweeter Adrian Edwards who commented:

"OMG just had a near death expeireance we were driving up the A30 and suddenly there was a purple micra coming down the wrong way in the fast lane we only just missed it as there was a van in front of us had ivy in the car too shit me up big time I'm shaking !!!!!"

And just to prove it, here’s a screenshot of the tweet.

shit me up

Mr Edwards was left so ‘shit up’ (or should that be shat?), that his attention to punctuation deserted him. But that’s pretty much the norm for virtually all exchanges on social media these days. I think we were better off in the days of ‘textspeak’.

And what became the driver of the offending Micra, you ask.

Police said a 58-year-old woman from the St Merryn area, near Padstow, was taken into custody.

Tuesday, 14 February 2017

We noticed you’re using an ad-blocker. Oh really?

block those ads
Like any self-respecting web user, I’ve used ad-blocking extensions for years now - since at least 2006. There are some sites so peppered with ads that browsing them without an ad-blocker just isn’t viable (I’m thinking in particular of some F1 sites I like to check frequently). Some sites are so bad that if it came to a choice between visiting them without an ad-blocker, or not visiting at all, I’d pick the latter, frankly.

Intrusive web adverts are annoying. There’s no getting around that. Equally, though, I’m not so away-with-the-fairies that I don’t recognise that a lot of this nice stuff we’re used to accessing freely on the net has to be paid for by someone, somewhere. Ads are the obvious way of doing that, but the dynamics of this model have changed hugely over the years and are becoming, by degrees, harder to sustain. (So I hear anyway.)

The use of paywalls is becoming worryingly commonplace – both across web content in general and streaming media in particular – and this approach flies directly in the face of some of the key founding principles of the web. And in this increasingly confused and scary world we live in, I think the need for the web to respect the principle of giving information freedom is more important than ever.

In the last couple of years, an increasing number of websites feature code to check whether visitors have ad-blockers installed. Where an ad-blocker is detected, the visitor sees a message of thinly veiled emotional blackmail or, increasingly, out-and-out pleading, asking the visitor to disable their ad-blocking functionality or to whitelist the relevant website. Some sites even prevent you from reading the article until you do one of these two things.

Most news agencies have used this tactic for some time, but other types of sites are now following suit. Even the ten-a-penny technology sites which regurgitate already regurgitated non-news, FUD and trite observations are doing it. I know. You wouldn’t think they’d have the nerve to try to guilt-trip visitors into viewing ads.

Almost invariably, I ignore all pleas of whitelisting. The one exception I made was for the Guardian’s website. Hey, I have to get my do-gooding, left-wing libertarian kicks somehow.

The bottom line is that web ads need to be more palatable and less intrusive. If there weren’t so many of them and if they weren’t so damned distracting and annoying, visitors would be less inclined to block ads in the first place. It’s a bit like the situation a decade ago when copyright holders were rightly lampooned for over-charging for their content, not doing enough to make it easily-accessible to customers in innovative ways, while struggling to understand why many users were choosing to download content unlawfully using peer-to-peer file sharing software. Thankfully, we’ve seen a lot of progress on that front (think: Spotify, Netflix and Amazon Prime, for example).

Back to web ads. The ones which get most on my thrupnies adopt the shock ‘n’ awe approach in which banner ads abseil down from the top of the screen, bumping the page content asunder in unnerving jolts, with the lower page content then being flanked by further ads. As these then load, the page content re-renders again so your eyes are bouncing around the page trying to catch up and you’re quickly reduced to a quivering nervous wreck. It’s a bit like expecting web users to browse the web high on crystal meth. It’s unacceptable and it’s disrespectful to the site’s visitors. And it’s no wonder use of ad-blockers has skyrocketed in recent years.

So, please, ad-makers and sites which feature them: try and be a bit more subtle and less annoying. Else the chances are your ads being unblocked are pretty much nil. And if that happens, we’ll all end up losing in the longer term.

Tuesday, 7 February 2017

Safer internet day


Yep - it’s here again.

I see I was cautiously positive when I mentioned SID in post back in 2008, but I think there was a distinct undertone of scepticism if I’m frank.

But, nine years on, far from slipping into oblivion, it seems safer internet day is well and truly ‘a thing’.

I guess that’s good news. It’s not going to work miracles, but it’s a start. It’s an opportunity to get people to stop and think about what they’re doing when they use the internet – which can only be a good thing. But let’s not kid ourselves: there’s a huge amount of work needed to help people help themselves when making decisions about their online conduct. And that’s by no means confined to children.

I had a butchers at the safer internet day quiz earlier.  Hopefully, the majority of kids will regard the ‘correct’ answers as blindingly obvious. Or is that being recklessly optimistic?

safer internet day quiz 1The theme with many of the answers seems to be: if in doubt, run and tell an adult. That’s not bad advice, but it’s crucial that young people are made to feel involved in the decisions behind safe online actions so they can understand the reasoning behind it and start putting that to use in the future.

There comes a point when telling kids to ask an adult isn’t going to cut it.

safer internet day - quiz 2

Getting kids to flip their perspective on a situation and appreciate that online conduct can have just as direct and serious ‘real world’ consequences as offline actions is central to successfully tackling the problem.  Sadly, on this latter point, people seem to be just as ill-informed now as there were when I dubbed it the fallacy of the virtual veil nearly ten years ago.  And that’s pretty depressing.

Friday, 4 November 2016

The Nuts and Bolts of Workplace Injury Rights

Featured Post

Workplace injury
We recently talked about what you should do if you find yourself injured at work. In the minutes and hours that follow your injury, there are a number of things you must make sure get accomplished. These include documenting the accident and speaking with a qualified legal representative. It’s good to prepare to do these things before you ever get injured, in fact. Being prepared can make terrible situations like these go much more smoothly.

But there is another bit of knowledge that will be helpful if you ever find yourself injured on the job. There are certain pieces of legislation that guarantee your rights, should you ever be hurt while working for an employer. If you know your rights, you’ll be a lot more certain of getting beneficial resolutions to your workplace injury claim. We’ll briefly cover a couple of these specific rights in the following. It’s important to note that there is a lot of diversity from state to state when it comes to workplace injury laws. The following are nationwide characteristics that you can generally rely upon wherever you happen to be injured at work, despite the specific laws found in your state.

  • You always have a right to leave work to see a doctor for treatment of your injury.
  • You have the right to put forward a formal claim about your illness or injury. Your case will be seen in a workers’ compensation court or an industrial court run by the state.
  • If you go to the hospital after an injury and are released, you have the right to go back to work. You can’t be sent home.
  • If you are so badly hurt or ill that you can’t go to work, regardless of the duration, you have the right to disability compensation of some kind. This will vary a lot state to state, but there will always be some kind of compensation available to you.
  • You can appeal an employer’s decision regarding your worker’s compensation claim. You can also appeal the ruling of the compensation court.
  • You have a right to legal counsel and representation throughout every step of the injury claim, compensation, and appeal process.

There are some states that are more generous towards injured claimants than others. It’s important for you to understand the general political climate of your state with regard to workers comp claims. This is especially true if you have a risky job, one where you come in contact with sick people, or if you perform any kind of manual labor. It is useful for every American worker to be equipped with this information.

It is also helpful to know to whom these rules do not necessarily apply. If you are self employed or are marginally employed through various non-traditional means, you won’t be able to hang your hat on any of these rights. If you are likely to be injured at your work in a role such as this, it is worth your while to consult with an injury lawyer ahead of time to understand your specific rights in the event of an injury.

We hope this helps, and that you will enjoy many injury-free years at work!