Friday, 31 January 2014

Dawn Raids by Competition Authorities most likely on Tuesdays

The rules governing dawn raids by competition authorities in the EU are complex. Powers vary depending on whether the raiding authority is the European Commission or a national competition authority; the suspected infringement; and the legal basis for the decision to investigate and the execution of the investigation. In the heat of the moment, companies can compromise themselves if they do not ask the right questions or do the right things.
Yep, the days of calling through the front door that you “aren’t decent” while your business partner burns papers and takes a hammer to your hard drive without arousing suspicion are long gone.

Shame.
We have analysed a random sample of 20 (relatively recent) EU cartel investigations to identify when the dawn raid that generally kickstarts these investigations took place.  
Fifteen of the twenty raids first took place on a Tuesday, with the remaining five starting either on a Wednesday or Thursday. In our sample, there were no raids that started on a Monday or on a Friday.
Competition authorities are well known for liking to start the weekend early, and ease themselves into the next week gracefully. Getting up early to conduct a dawn raid really isn't a fun way to spend a Monday morning.
As regards the time of year, it is notable that none of the raids in the sample started in August or December. The Commission is effectively closed for the entire month of August so […] the statistics reflect annual holiday patterns. As regards December, it may be that the intervention of the Christmas break (and the prevalence of Christmas parties) militates against initiating a raid, with forensic evidence-gathering, at the year end.
Yep.  During the Christmas party season, everyone at the Commission is far too trollied to even contemplate undertaking a dawn raid.   Ahem.
Companies that consider themselves potentially to be at risk of an unannounced visit from EU inspectors should ensure that key executives trained to manage dawn raids are readier on Tuesdays than on other days of the week. Holidays should be encouraged during August and December.
Yep. You might want to ensure that your lawyer is on speed dial and generally available (particularly early in the morning) on Tuesdays to Thursdays.
 

Tuesday, 28 January 2014

Conveyancing 101 – What Your Conveyancer Does and How to Choose One

Guest Post

conveyancing servicesFor the uninitiated, conveyancing is the legal process that deals with the transference of property from one person to the other. With house-buying being one of the most stressful things a person can go through, choosing the right conveyancer is vital for your peace of mind and your wallet.

You can choose a Solicitor as all are qualified to carry out the conveyancing work, but being able to do something and being good at doing something are two different things. Taking on a specialist who is able to carry out the work quickly and expertly such as Quick Move Conveyancing can take a lot of the stress out of the process as they will usually deal with your mortgage provider directly and manage things such as informing the land registry of the completion of your sale.

Regardless of whether you choose a specialist or rely on your Solicitor, there are several key tasks that your conveyancer is going to perform:

  • They will check that there are no outstanding liabilities on the property you are purchasing; this includes checking with utility companies, sewerage proximity, archaic church repair charges and other potential costs.
  • They will review and check all the contracts pertaining to the purchasing of the property.
  • They will take care of the payment of fees such as stamp duty and estate agents costs, which will be factored into their fee at the end of the process.

When choosing a conveyancer, cost will be an important factor. However, as with so many things cheaper does not necessarily mean better. A specialist will have experience with all the regular channels, as well as contacts and procedures that are likely to be slower for a non-specialist.

You can ask your mortgage provider for a list of approved conveyancers, which is a good starting point, but be sure to compare not only costs but experience and testimonials. Many online conveyancers have the added benefit of being able to track their progress online, resolving one of the most problematic issues in house buying: communication of progress with the other party.

Do make sure that your conveyancer is regulated and insured; there are two regulating bodies. The Solicitors Regulation Authority regulates conveyancing solicitors and the Council for Licensed Conveyancers regulates licensed conveyancers in England and Wales. Do not take the word of the company you choose to use that they are registered; both of these bodies have lists of the people they license so check out the credentials of the company with the regulating body itself.

Finally, make sure you know what you are paying for. Make sure your conveyancer is fully comprehensive and make sure you get it in writing exactly what is covered, and what the abort fees are. Make sure you know exactly what costs you are liable for before you sign anything.

Monday, 27 January 2014

Driver faces court after splashing schoolchildren with puddle

Car SplashingFrom the Telegraph 22/01/14:

A motorist is facing prosecution after he allegedly drenched children walking to their primary school by driving through a puddle.

He has been summonsed to appear before magistrates for driving without reasonable consideration over the incident, which was witnessed by a passing policeman.

The man faces a charge under a little-known provision covered by [section 3 of] the Road Traffic Act [1988], which makes it an offence to “drive through a puddle causing pedestrians to be splashed”.

Let’s be clear here: the Act itself does not contain a provision which expressly makes it an offence splash pedestrians by driving through puddles. However section 3 of the RTA provides:

Careless and inconsiderate driving
If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

S3ZA of the RTA gives guidance as to the meaning of careless or inconsiderate driving. Further guidance is provided by the CPS by way of their 'Policy for prosecuting cases of bad driving'.

This gives the following examples of conduct appropriate for a charge of driving without reasonable consideration to be made out: flashing of lights to force other drivers in front to give way; misuse of any lane to avoid queuing or gain some other advantage over other drivers; unnecessarily remaining in an overtaking lane; unnecessarily slow driving or braking without good cause; driving with undipped headlights that dazzle oncoming drivers; driving through a puddle causing pedestrians to be splashed; and driving a bus in such a way as to alarm passengers.

“Driving a bus in such a way as to alarm passengers”. You what?!?  From my recollection of riding on a bus, most bus drivers operating in the country must be routinely guilty of committing this offence!

By virtue of section 3ZA(4) RTA, this offence is made out only if other road users are inconvenienced by the driving of the defendant. Evidence of such inconvenience may be provided either by the direct testimony of another road user, or by inference to be drawn from evidence of the reactions or behaviour of other road users.

Anyway, back to the story.

Debbie Pugh was walking her children, David, 8, and Emma, 11, to St George's Junior School in Colchester, Essex, when a motorist allegedly ran through a pool of water standing along the road.

They’re also known as ‘puddles’. Moving on.

She said: "We got soaked. My son was crying his eyes out. I was yelling obscenities at the driver.”

Classy.

A police car stopped and the officer spoke to her about what had happened.

Mrs Pugh said: "He said the puddle could have had a stone in it that could have hit us. I can laugh about it now because I have got a sense of humour but it wasn't funny when I was trying to get my children to school and keep them warm and dry."

I think all pedestrians have experienced being deliberately splashed by cars driving through puddles on wet days. When it’s raining, pedestrians are often faced with a dilemma: do they walk sensibly and with dignity by the larger puddles but run a greater risk of being splashed by a car or skip, hop or jump rather camply around them. I’ve faced many a soggy and ignominious trudge to work having made the wrong call in the past.

It’d be nice to think that a few more cases like this being brought to court will start to curb the behaviour of drivers who otherwise delight in making pedestrians’ lives even more of a misery than they need be.

I’m not particularly hopeful though.

Friday, 24 January 2014

The JACKSON REFORMS – are judges being too harsh?

Guest Post

As early as 2009 in his final report on reform of costs and civil procedure rules, Lord Justice Jackson made it very clear that his recommendations would herald radical and seismic changes to the conduct of civil litigation in the United Kingdom. When these became law in the LASPO ACT of 2012 and finally began to be implemented on 1st April 2013 the legal profession had no excuse to be shocked by the change of culture in the civil courts. The new watchwords were EFFICIENCY, ROBUSTNESS and COMPLIANCE. No longer was a culture of justice at any cost to be tolerated. The new regime would be justice at proportionate cost. To achieve this civil procedure rules were rewritten and budget control of cases became paramount in the new system. So nearly a year since its implementation, it is a prudent time to assess how the new system has influenced actual cases. To claim success, the new regime needed to win the support of the judges in the civil courts, for in the final instance it is their interpretation of and adherence to the rules that matter
With any new system, especially one aiming to tighten up and reform, a strict and disciplined regime might be expected. If leniency and tolerance of slack practices, such as non-compliance on court orders such as filing witness statements on time, exchanging budgets 7 days before the hearing, were allowed, then the reforms would have been a waste of time and effort. Accordingly, the judges charged with interpreting the new regime have gone for tough adherence to the rules. The  most publicised case to date has been Mitchell v News  Group Newspapers, a defamation claim. The claimant’s solicitors were late in filing their budget. The judge, Master McCloud, applied the appropriate sanction, which was to treat the claim as having filed a budget to claim only applicable court fees. Such would have lost the claimant fees of over £500, 000 had the claim succeeded. The new sanction was CPR 3.9. A second hearing before the same judge, for relief against the sanction failed. The mitigating factors put forward by the claimant’s solicitors included staff shortages and pressure of work. The lack of indulgence marked the new stricter interpretation of CPR rules. The judge also cited that another case had lost its slot in the court’s timetable because of the failures.
Careful and fair use of court and judicial resources had been another aim of the Jackson reforms. Basically the judge had been unprepared to accept any excuses in the breach of the rules and court directives. Her judgment emphasised that the “new overriding objective was not only to deal with cases justly, but at proportionate cost to ensure compliance with rules, orders and practice directions” and that ,“ the stricter approach under the Jackson reforms has been central to this judgment.”
This was the first case where the Jacksonian principles had been applied and the first to go to the Court of Appeal. Again strict adherence to Jackson’s reforming philosophy meant that the original judgments were upheld. In November 2013 the Master of the Rolls, Lord Dyson emphasised that their decision was “harsh”, but justified it, “ if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback…. We hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.”
With senior judges appearing so robustly supportive of the Jacksonian philosophies of greater efficiency, better business practice and careful cost management, then it is hardly surprising that recent judicial decisions might appear harsh and tough. But to achieve a more disciplined and compliant civil justice system, they would need to be. It is always easier for a new regime to start out tough and relax later. Too much tolerance and a relaxed approach now would not be the way forward to achieve any meaningful change in civil litigation culture.  After all, that is what the Jackson reforms are all about.
This article was written by Vannin Capital. Visit their website to learn more about how the Jackson Reforms could affect you.

Wednesday, 22 January 2014

Email sins revisited

Over time, it seems that email is abused more and more.  Yet for all of the criticisms concerning its use and the promise that some new wave of social media for the corporate world will kill email off for good, it’s more widely used than ever.

Email, like all forms of communication, has evolved.  It’s an on-going process.  It’s also true to say that email should be used in different ways depending on the circumstances.  When it comes to sending email, there is no one-size-fits-all.

Where email is used in a business or professional context, there are a few hard and fast rules which always apply. The Telegraph have picked up on a few of these (and, in my view, wrongly listed others). 

Here’s my take on their list of ‘seven deadly emails sins’.

1. Ping pong - constant emails back and forth
Yes, absolutely.  Taking time out to think properly about the situation and your response is always a good idea and amounts to time well spent.  Firing back an immediate, ill-thought-out reply can often result in tears (or at least a painful and protracted email thread).  Sometimes, picking up the phone and talking with the recipient beats email hands down, too.

2. Emailing out of hours 
Well, I guess it’s a question of extent.  Sometimes, emails need to be sent outside of regular work hours and it seems silly to wait until the next morning for the sake of adhering to policy.  But managing that ever shrinking divide between work and leisure is an on-going battle we all grapple with.  Knowing when to leave your work email unread is a key part of that.

3. Emailing while in company
As someone with virtually no multi-tasking skills at all, I find it incredibly irritating when I’m in the presence of someone I’m speaking to, who, as well as (sort of) participating in the conversation with me, is tapping out a response on their phone.  Maybe it’s jealousy?  Still, I’m a big believer that focussing on one thing at a time can often prove more productive in the long run.

4. Ignoring emails completely
On the whole, I’d agree.  Very occasionally, though, you might receive the an absolute howler which simply shouldn’t be dignified with a response.

5. Requesting read receipts
In some situations, my firm insists that read receipts are used on mail that we send.  Personally, I think they’re an annoyance and a complete waste of time.  I invariably configure my mail clients to ignore all requests for read receipts.  I’d recommend that you do likewise.  ;-)

6. Responding immediately to an email alert
I might have a view on this – if I knew what it meant.  Any ideas?

7. Automated replies and rules
Well, email rules, as I understand them, benefit the recipient by helping to automatically organise emails as they’re received.  (That’s true, at least, when used sensibly.)  Automated replies can be useful for both sender and recipient (assuming they’re configured correctly and the message provides genuinely helpful content – such as when the person will return to work, or who to contact in the meantime). 
Quite frankly, they’re definitely useful and have no place on this list.

I’d also like to throw in the utter futility of email footer messages ‘reminding’ the recipient not to print.  Compared to most of my colleagues, I’m very measured in the documents I choose to print. That said, I don’t appreciate being incessantly nagged at by green-coloured messages intended to guilt trip me into thinking I’m not entitled to use my printer. 

Businesses should stop kidding themselves that pieces of stupidity such as this make a meaningful difference to the environment – an environment, let’s not forget, that’s being systematically destroyed by humankind in a whole host of ways.  Why don’t we try and do something that will really make a difference and do it before it’s too late?

Just a thought.

Whilst, I’m on my hobby horse, I may as well bring something else up – commas.  I don’t know what the humble comma has done to apparently offend so many people, but I’ve noticed that shunning it when writing emails has suddenly become de rigueur.  It’s something law firms in particular are very guilty of.  I understand that the primary goal for written communication is to articulate the intended message as clearly as possible.  Equally, I fully appreciate that many businesses (law firms included) adhere to the plain English whatjamacallit.  Nevertheless, there is absolutely no need for a business to insult its customers, clients or anybody else it sends emails to by assuming that the inclusion of a few commas would be too much for the readers’ underdeveloped brains to cope with, thereby rendering the message unintelligible. 

Tuesday, 21 January 2014

Movie Therapy for Law Students – Book Review

Movie Therapy for Law Students by Sonia Buck is, how shall I put it, one of the more niche titles that you’re likely to come across.

Its chief aim is simple: to bridge the gap between legal study and the watching of legally-themed films.

Confused? It’s simple really.

Law students, being a fastidious and conscientious bunch, tend to feel pangs of guilt when they put leisure time above studying. Well, something like that. With the help of this book, law students should be able to freely engage in some movie-watching downtime without being unduly encumbered by their consciences.

Movie Therapy for Law Students
The book considers 33 films, listed in chronological order – all of which have a legal theme running through them. The list spans a diverse spectrum, from the 1962 dramatisation of Harper Lee’s To Kill A Mockingbird right through to the comedy Liar Liar. Like I said – diverse.

For each movie listed, the book provides details of the plot, the lead actors featured, as well as a couple of key quotes from the script. It then moves on to consider the main areas of law associated with the plot, with helpful extracts of relevant sources of law alongside. Substantive areas of law are considered - such as contract law, the law of tort or criminal law - as well as ethical conundrums affecting the rules relating to professional conduct. In addition to all that, the author provides valuable tips for exam success, along with some ideas for further reading.

Inevitably, a book such as this cannot possibly provide a thorough commentary on each area of law that’s discussed. But the book never sets out to do that. Instead, it succinctly guides the reader in thinking critically about some of the legal issues going on beneath the surface in the various films it considers. Readers will be stimulated by a whole host of thought-provoking questions and ‘what ifs’, which will leave them cogitating long after the film has ended.

Admittedly, the book is focussed on US law and the extracts of source material provided reflect that. Nevertheless, that’s not to say it won’t appeal to law students based elsewhere given that many (if not most) of the thinking points apply regardless of the jurisdiction concerned (it’s just the answers that’ll be different).

To the extent that critical analysis and the practical application of law can be combined with the watching of movies, this book does it well.

As an aside, when I was studying for my A levels, I remember a classmate who seemed to honestly believe that watching previous episodes of Ally McBeal constituted valid exam revision. I think that was a stretch too far but the approach taken by the author in this book makes a damn good attempt at genuinely combining legal study and the watching of movies.

Whilst some might prefer to keep studying and film-watching entirely separate, students should never be encouraged to pass up opportunities for critical reflection on legal issues. As clich├ęd as it sounds, it’s all part of the process in which students learn to think like lawyers.

And if this book helps in that process, surely it’s earned its place on the bookshelf?

Thursday, 16 January 2014

Laura the Lawyer and Denise the Dentist: What’s in a Name?

legal stereotypesFrom News Republic 08/01/14:

Research suggests that people choose—or are unconsciously drawn to—careers that resemble their own names.

In a 2002 paper in the journal Attitudes and Social Cognition, psychologists from the State University of New York at Buffalo, led by Brett Pelham, found that people’s first and last names may have an impact on the jobs they end up in, thanks to a phenomenon called “implicit egotism.” “The essential idea behind implicit egotism,” they write, “Is that people should prefer people, places, and things that they associate (unconsciously) with the self...people’s positive automatic associations about themselves may influence their feelings about almost anything that people associate with the self.”

We began our assessment of career choices by focusing on whether people’s first names predicted whether they were dentists or lawyers.

We searched for dentists and lawyers by consulting the official Web pages of the American Dental Association (http://www.ada.org/directory/ dentistsearchform.html) and the American Bar Association (http://lawyers.martindale.com/aba).

We began this search by consulting 1990 census records. Using these records, we attempted to identify the four most common male and female first names that shared a minimum of their first three letters with the names of each of these two occupations.

The 16 names we generated in this fashion included the female names Denise, Dena, Denice, Denna, Laura, Lauren, Laurie, and Laverne and the male names Dennis, Denis, Denny, Denver, Lawrence, Larry, Lance, and Laurence. We expected that people with names such as Dennis or Denise would be overrepresented among dentists, and people with names such as Lawrence or Laura would be overrepresented among lawyers...We limited both searches to the eight most populous U.S. states (California, Florida, Illinois, Michigan, New York, Ohio, Pennsylvania, and Texas).

Their findings confirmed the implicit egotism theory:

Relative to female lawyers, female dentists were quite a bit more likely to have names that began with the letters “Den”…Though the results for men were also in the expected direction, they fell short of significance.

If the implicit egotism theory holds true, I should be Michael the milkman rather than a lawyer. Or mariner maybe? A masseuse?

Oh please!

Don’t worry – it’s not just you: I’m not particularly convinced that implicit egotism shapes career choices either.

Wednesday, 15 January 2014

An employee's guide on how to give notice effectively

Guest Postemployee notice of terminationThinking of leaving your job? Amongst the many things for you to think about is how and when to give notice to your employer. Here are some common questions answered by employment lawyer Jon Curtis, managing director of myhrtoolkit.

What's the best way to give notice
Unless there are unusual circumstances the best way is face to face with the relevant manager and then handing a confirmation letter over.

Should I give notice in writing?
The short answer is, yes. Some more formal written contracts of employment have a "notices" clause which require all formal notices under the contract to be made in writing. It is important you check this clause because sometimes there may be rules about how such notices can be given. For instance email my not be allowed or service may only be valid if posted to the company's registered address (which might be different to the trading address).

Most people though will not have such formal agreements but even if there is no notices clause it is still highly recommended to confirm your resignation in writing, so that there is no ambiguity later as to when notice was given.

When does notice run from?
Generally speaking it would run from the day after the notice is served. Ideally you will hand deliver the notice so that the date is clear. Fax and email both effect immediate delivery of course (as long as the recipient agrees it arrived!). Post is good but if it is posted don't forget the letter may take some days to arrive and the notice will not run until the letter has been received. Ideally if you are posting, then follow up by phone or email to ensure receipt.

What information should I include?
Certainly the notice letter should be dated to prove when it was served. Ideally you would also include the final date of employment as well as dealing with any accrued but untaken holiday pay. Some employers will expect you to take all of your holiday before you leave, others will allow you to be paid in lieu. Of course, if you have taken more holiday than you have accrued, you may have money deducted in your final pay packet.

How much notice do I need to give?
This will normally be set out in your written contract but if it is not, you will need to give "reasonable" notice which could be one week to six months depending on how long you have worked for your employer and how senior you are. You may need to take formal advice if you are unsure.

Will I be paid in lieu of notice?
That is not for you to decide and is out of your hands. Depending on the circumstances, your employer may want you to work or your employer may want you off the premises immediately. One other option is that your employer may keep you employed but ask you not to come into the office. This is called "garden leave".

Are there any other considerations?
Working during a notice period can sometimes be awkward for both employer and employee. It is important for both parties to remain professional. Sometimes the employer will want to know where you are going to work next. You do not have any obligation to tell them, but (assuming the choice in not contentious!) you might well calm any fears by telling them.

What about post termination obligations?
Your contract may well contain post termination restrictions which you should ensure are properly understood. Even if you don't have such restrictions you will probably have an ongoing obligation to keep certain information confidential so be sure you understand your obligations in this regard.

Bob Teasdale is business manager for MYHRToolkit. Providers of cloud based HR Software solutions.

Monday, 13 January 2014

Police station representation: what to do if you get arrested

Guest Post

police arrest stop and searchMany of us don’t know our rights when it comes to interacting with the police, whether it’s being stopped and searched in the street or something more serious like being arrested. Even those who have been on the wrong side of the law on several occasions might not necessarily know what is the best practice in these situations.

If you’re arrested, though it  might be a time of heightened stress, try to keep calm and have in mind that you have a right to be treated fairly and with respect by the police. Panicking may cause you to say something that might jeopardise your case and resisting arrest can lead to injury and even more serious criminal charges.

Firstly, it’s important to remember that you are not required to say anything to the police when arrested and questioned. As you will have no doubt heard in plenty of movies and TV programmes, the arresting officer will usually say something along the lines of: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

At the station, it is usually recommended that you make “no comment” in response to questions and don’t write or sign a statement until you have spoken to a solicitor. You have the right to consult with a solicitor privately and are entitled to free police station representation by a legal professional. If you want to make the point clearly you can always say: "I have been advised that I should answer no questions. It is not right that I should have to give a complete case for myself until charges have been made and properly explained and until there are other people around to check that questions put to me are fair and legal. I will say nothing until I am advised to do so by a fully qualified legal advisor".

You should never refuse representation at a police station since evidence collected in any interview can be used against. Your solicitor will be able to advise you how to conduct yourself when being questioned. If you know of a solicitor, you can ask for them in person, otherwise the police custody offices have contact details of solicitors held by the ‘Duty Solicitor Call Centre’. When interviewed on tape, you can protect yourself by saying that your solicitor has advised you to make “no comment” - this way if your case has to go to court, the solicitor can take responsibility for offering poor advice and you will not be to blame for comments.

After an initial arrest and before you can be charged with an offence, police will often continue to investigate a crime to gain evidence which is then submitted to the Crown Prosecution Service (CPS) who will then advise the police what to do. Whether you are charged or not, there are several possible outcomes:

  • You will be bailed back or released on bail, meaning you can go free but must return to the police station at a future date and time. Your bail might have certain conditions attached to it such as not being able to contact certain or having to hand in your passport. If police suspect you have skipped bail in the past or been convicted of a serious crime, you are less likely to be granted bail.
  • You will be cautioned. This is a formal warning which is kept on record and can be used as evidence in future criminal proceedings.
  • NFA or No Further Action means that you are free to go and no action will be taken against you unless further evidence comes to light.
  • You can be charged and bailed. meaning that there is enough evidence to prove that you are guilty in court. This doesn’t mean you will be found guilty by a jury however. You will be given a court date and released, at which point it is advisable to seek legal advice.
  • The worst case scenario involves you being charged and remanded in custody. This means you will be kept at the police station and taken to court as soon as possible for a hearing at the Magistrates’ court. Essentially, you will be in prison and can be remanded after this hearing, if for example you case is passed on to the Crown Court for trial or sentencing.  

This article is a guest post.

Thursday, 9 January 2014

UK Labour Laws – Could things have been different for the family of John Wilson?

Guest Post

What on the surface seems a rather standard case of negligence has proven to show that the cogs of liturgy become more convoluted the larger the case tends to grow. Therefore, following a criminal hearing against the management, the family has had 'the door to justice closed,' though remain intent on pursuing the case.

In this regard, then, for all members of the British workforce it is worth considering what might have occurred should this event have taken place on UK soil, and could the outcome have been different?

UK Labour Laws
UK labour laws are an umbrella system of interconnected laws governing everything to do with the workplace – from the statutory minimum wage, to the minimum number of days holiday an employee must be granted each year. Included in this roll-call is, of course, a health and safety law – something which is taken very seriously in Britain. The leading piece of legislation in this regard is the Health and Safety at Work Act 1974, an overbearing system of regulations that ensure the well-being of employees at work.

How Could These Have Protected Mr. Wilson?
Well, firstly, if Mr. Wilson had been working in the UK at the time of his accident, the management would have had to release to the courts immediately following the accident a precise safety brief detailing all the procedures in place at the time. This preprepared document would provide an instant look into whether the management had fulfilled their end of the bargain and had indeed installed sufficient safety processes. The shining light in this example is that the cause of Mr. Wilson's death was allegedly a faulty escape hatch on the roof of the cabin during the time of the flood. Had this have been properly tested and checked beforehand, then of course it is likely that Mr. Wilson would have survived the accident. Unfortunately, though, what seems to be due to an incorrectly placed 'bush guard' obstructing the latch on the outside of the hatch, Mr. Wilson couldn't escape and as such drowned in the flood.

In this case, then, there was an obvious malfunction somewhere along their safety process, which resulted in the death of an employee. In the UK, the training of each individual would have been called into question to ascertain the reason why nobody spotted the faulty escape hatch. The training programme would have been reviewed, and the process of supervising all company machinery to ensure it imposes no danger would have been called into suspect.

“So Far is as Reasonably Practicable”
However, like much legal framework, this situation would have still not been so cut and dry. These six little words that every worker in Britain should be familiar with at all times could have had major implications on the outcome of a tribunal looking at the death of John Wilson. To expand, “so far is reasonably practicable” basically means that the employer must instil the most effective health and safety procedures, up to a point where they become financially disproportionate to the degree of risk imposed. In this case, however, working in an area that is known for flooding, it could be argued that reasonable measures were not taken.

As with all legal matters, it is nigh impossible to predict what will occur. What is clear, though, is that in the UK this matter would have been treated much more litigiously, and maybe – just maybe – the family of Mr. John Wilson would have met a much more favourable outcome.

Should you have been involved in an industrial, or work related accident of any kind, it would be wise to seek proper legal counsel before making any decisions on what you may pursue. Coles-Law's professional work injury and industrial diseases team can advise you on what to do next, and offer expert help and advice regarding any aspects of your legal pursuit.

This article is a guest post by David, a content writer on legal topics. You can see his profile at google+.

Wednesday, 8 January 2014

Oh Cakes… Oh My!

From the Metro 06/01/14:

A woman was sent a cake that resembled human faeces with the words ‘eat s**t’ written on it after a dispute with the baker.

Poo Cake

Charming.  It must have been quite some dispute.

Micaela Harris was left embarrassed, and her nieces upset, when she pulled off some ‘magnificent’ wrapping paper to reveal the rude looking creation at her engagement party in New Zealand.

Still, I’m sure nobody present will ever forget it.  It’s not every engagement party that gives its guests the chance to munch on a turd-styled cake! 

Thank God Oh Cakes were not supplying the wedding cake as well.

The poo cake was retaliation against her sister who had had a disagreement with Oh Cakes owner Emma McDonald when organising the gift.

[Harris said] ‘I think it [the disagreement] was taken too far.’

‘As a business owner you come across customers you don’t like but you have got to take the highs and the lows, got to suck it up.’

Given the style of the cake, I’d say that was an unfortunate choice of phrase!

McDonald seemed unrepentant after the incident and even posted news stories about the cake on her Facebook page.

She wrote: ‘Nothing really negative that I’ve seen apart from a few who didn’t read and understand it properly.

‘Seems to be pooping popping up everywhere… business opportunities have been thrown my way as well.’

Heck, maybe there’s demand out there for shit-styled cakes.  After all, you can’t exactly pop into Marks and Spencers for one, can you?

I wonder what it tasted like!  I mean – it looks chocolaty, right?

Tuesday, 7 January 2014

Are personal injury claimants vulnerable to “fickle” insurers?

Guest PostFickle InsurersA recent case in which an insurer attempted to make changes to a claim for a road traffic accident based on a change of heart on admission of liability has highlighted how vulnerable claimants can be to the whims of insurers.

In many cases claimants will deal with a number of different representatives from their insurance provider, making them exposed to changes in personal opinion – one insurer may want to approach the claim in one way, but another individual at the same company may have a very different view, and if they become the lead representative on the case it can cause real issues for claimants.

In the case mentioned above a recent applications to resile from an admission of liability was rejected by the court. The application was rejected for many reasons including the fact that no new evidence had come to light and the main crux of the accident was that liability had merely been mistakenly admitted.

As well as this there was no evidence to suggest that a claimant had been deliberately misleading, and as the claimant’s accident occurred more than three years ago – the standard time limit for making a claim – they would be left unable to claim the compensation they are entitled to should the claim in progress suddenly change track.

The judge in the case ruled in favour of the claimant and agreed that should the claim be stopped it would leave the claimant in less than ideal position.

This was clearly the right decision and it is positive to see the legal system veering on the side of claimants, who are the victims. The case also shows that claimants can be at the mercy of insurance firms – their case may be moved from person to person, and this could change its focus considerably.

More must be done to ensure that claimants are protected, and that the original focus and drive of the case remains in place regardless of who ends up handling the case. It is extremely unfair on claimants when insurers attempt to change their mind with no new evidence. It can happen when a file changes hands within an insurer and a new file handler takes a more bullish approach, for example.

McHale & Co is a full service law firm based in Altrincham, Cheshire, with expertise in family law, criminal defence, civil litigation, motoring offences and business crime.

Saturday, 4 January 2014

The festive season draws to an end

End of ChristmasOur Christmas decorations were taken down today and stuffed in a large plastic tub dutifully packed away all ready for next year. As has become something of an end-of-yuletide tradition for me, I spent a good hour or so chopping up the Christmas tree with loppers and a bow saw before depositing the ‘chimbled’ remains into our composter. This act has come to symbolise the ending of the Christmas period for me. At least it helps to burn off some of those excess Xmas calories.

Just to ram the message home, I’ve removed the Christmassy header from Law Actually and reinstated the normal version. My blog now, just like our house, is looking barren, bereft and forlorn without its festive embellishments.

And do you know what? It’s struck me as a great pity. This year more than any other, I found that Christmas very nearly passed me by entirely. December was so manically busy (apparently clients like to have certain matters wrapped up before Santa arrives) that it didn’t really dawn on me that it was ‘that time of year again’ until it was too late. And just as I was getting into it and embracing the festivities, merrymaking and enforced downtime, I’ve found that it’s all over and January (and the time to return to work) has arrived with all the grace of a smack in the mouth.

I’m hoping to ease myself gently back into work on Monday. I’m not optimistic it’s going to be as smooth a ride as I hope.

Friday, 3 January 2014

It’ll be deadly this Christmas…

Deadly This Christmas From This Week 24/12/13:

True fact: You are more likely to die on Christmas, the day after Christmas [commonly known as Boxing Day in good ol’ Blighty], or New Year's Day than pretty much any other day of the year.

Like ugly sweaters and bizarre fruitcakes, the spike in the fatality rate has become something of a yuletide tradition.

I’m not sure that bizarre fruitcakes are one of the symbols most associated with Christmas, to be honest, but let’s not worry about that now.

Indeed, the morbid trend appears to have held consistent since at least the 1970s, per a new CNN report. According to the Centers for Disease Control and Prevention, 93 percent of all Christmastime deaths are due to natural causes — heart attacks, respiratory diseases, digestive problems, and the like.

While examining U.S. death certificates, UC San Diego sociologist David P. Phillips noticed that the paperwork seemed to pile up every year around the holidays. So he and his team pored over three decades' worth of death certificates and emergency room literature to try and figure out if the dreaded Christmas death spike was the real deal. Their conclusion: "There are holiday spikes for most major disease groups and for all demographic groups." (One noticeable exceptions: Children, who don't see a spike.)

Phillips and his team have a few theories why. Stress could certainly have something to do with it; the same with cold weather. One of the more frightening possibilities, of course, could simply be that hospitals are understaffed around the holidays, when health-care professionals are taking time off like everybody else to be with loved ones.

Coupled with that, the medical staff that are working over the Christmas period are likely to be stressed, tired and not at their best. It’s already widely known that, statistically, you’re more likely to die if you’re admitted to hospital on a weekend compared with a weekday, so this spike in mortality rates during the festive season isn’t really that surprising. But it’s not all bad news: medical negligence lawyers know that as well as bringing gifts at Christmas, Santa also brings plenty of work for the new year!

Besides all that, it’s not difficult to see why Christmas is such a dangerous time of the year. Risks lurk round every corner, accidents are aplenty and injuries inevitably ensue. There tends to be snow and ice underfoot (or flood waters of biblical proportions if recent Christmases in the UK are anything to go by), feasting to be done (which usually means burn injuries from hot cooking fat, scalds from overladen stoves and undercooked turkeys full of nasty e-coli just waiting to get you). There are Christmas decorations to trip up on, trees to topple over and squish you, and fairy lights, well past their prime, waiting to electrocute whichever unsuspecting victim ventures near. There are nuts and sweets to choke on (making it all the more surprising that children do not feature statistically as victims over Xmas) and newly-gifted power tools waiting to bite DIY-ers who are desperately out of practice.

And to top it all off, there’s the inevitable gloom of January just round the corner. Where’s all that festive cheer now, I wonder?

But ignore my miserable musings and the gloomy time of year. As the Cooperative food ads will no doubt be spouting soon: relax, Easter is just round the corner.