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Category Archives: stuff that isn’t law at all

Moving on up yeah, now I’m out of the darkness

This is a personal post, not a legal one, so feel free to skip it.  Don’t worry, it is not about to be some Angela’s Ashes style disclosure that will curdle your milk on your breakfast cereal, though it is about my childhood, there are no significant harm issues.

 

When I was eleven, my teacher taught us a lesson about Louis Braille, the man who invented Braille language for the blind. My teacher told us that Louis Braille had gone blind in one eye due to an accident with an awl, doing woodwork when a splinter went into his eye. He then told us that years later, Louis Braille once rubbed his blind eye and then rubbed his good eye with the same hand without thinking about it and it made him blind in both eyes.  [This is not quite true – there was an infection from the wound as a result of the first injury, but it had nothing to do with rubbing it]

This story meant that until about twenty-five, I would only ever touch my left eye with my left hand, and vice versa, to make sure that if I went blind, it would only be in one eye. Thanks teach!

I was very afraid as a child of going blind. I still am, to be honest. I used to test myself by putting a tie around my head so that I couldn’t see, and trying to do basic everyday tasks – getting dressed, brushing my teeth, going downstairs, making breakfast. I knew the dimensions of my home, how many paces from bed to door, how high the doorhandle was, how many steps from my door to the top of the stairs, with my eyes closed.  I even tried to teach myself Braille whilst I still had my sight, figuring that it would be easier.

When I was twelve, we had an eye test at school. And I failed it. I should have seen it coming, in retrospect. I was able to answer any question asked aloud, or written in a textbook, but I never put my hand up for any question written on the blackboard. And when we were out in a car and my dad said “Look! can you see that kestrel?”  I never could, but I just nodded excitedly and pretended. The eye testing people told me that I’d have to wear glasses for a little bit, just to fix my eyes and that wearing glasses would make my eyes better so I wouldn’t need them.  Lies.

When I came out of that eye test and I knew I’d have to wear glasses, I knew that my life was ruined. I didn’t take it well, I was not a brave little soldier. A week later, I stopped being Andrew and became “specky four-eyes”  or “brainbox” or “Professor”.  I hated every moment of wearing those glasses, becoming just a kid who wears glasses and not me any more.

A year later, I went for the repeat eye test, and I had just one goal – getting a pass and not having to wear them anymore. So when I went in the room, I immediately memorized the board. It worked up until they revolved it, at which point my ability to read tiny, tiny writing mysteriously vanished. I would have to do better next year. So I upped my game. I had memorized not only the first board, but all of the later boards that I had seen when they had put lenses on.  Turns out, it is harder to fool optometrists than you think it would be.

Wearing glasses made me very shy.  In case this is feeling a bit self-pitying, I’ll show that I have some perspective. There was a kid in my class who had lost his arm somehow, and if you gave him 50p, he would take his artificial arm off and let you touch his stump. He had a lot more to be sorry about than I did – so I’m just trying to tell you how it felt for me then. I know it wasn’t really that bad.

I’m still shy today, to be honest. A lot more shy than anyone would imagine, and that’s because when I went to college and was surrounded by a peer group of strangers, who didn’t only know me as “specky four eyes”, didn’t know me at all, I had an important revelation. “None of these people know that you’re shy”, I thought, “so you get to pretend that you’re someone who isn’t. Who would you like to be? And just be them”

So I found some really good masks to put on, and eventually, the people I was pretending to be sort of became the people I was.  I was also really lucky to be born into a generation where glasses and being brainy and being interested in smart stuff went from being things that would marginalise you and get you bullied if you mentioned them to suddenly becoming cool. I’ve been waiting about ten years for the old world order to be restored and for people to start picking on geeks again, but it turns out we won.  Thank you Joss Whedon!

Anyway, about three weeks ago, I noticed that I wasn’t able to read magazines properly. I was doing a sort of dance with them, moving them back and forth until I could see the print, then it would go. And then it turned into books. And then I noticed that I was actually reading better without my glasses than with them.  I’m thirty years older now than when I was faking those eye tests, so I wasn’t thinking “My god, I’m finally fixed, I don’t need glasses any more”  – but I was back to thinking those terrible things about having to navigate the world without sight.

It turns out that I just need varifocals. I’m not going blind, I’m just old. Officially old. But it was something of an emotional day, stirring up all those old thoughts, and I just thought for once I would share them.

I was blind, but now I see, as Primal Scream sang.

Rihanna you’re a Womble !

 

 

This is not child protection at all, and a solid 80% of what follows is nonsense, but it is all based on a commercial law case called Fenty and Others v Arcadia Group 2015 just decided in the Court of Appeal.   (the case is really Rihanna v Topshop, but that’s the formal name – Fenty is Rihanna’s surname, and Arcadia own Topshop)

 

 

This is the original judgment

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/2310.html&query=fenty&method=boolean

 

 

and this is the appeal

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/3.html

 

 

Quickly, because this might confuse older readers, younger readers and No-Telly Neville.   Rihanna is a current pop star, with a substantial batch of hit songs and is also a fashion icon for young people – she is cool. The Wombles are a group of fictional furry creatures who live on Wimbledon common and who make good use of the things that they find, things that the everyday folks leave behind. They pick up rubbish.

 

 

Major recording artist with a string of catchy hits

Major recording artist with a string of catchy hits

Picks up rubbish  (yes, I went there with the Chris Brown gag)

Picks up rubbish (yes, I went there with the Chris Brown gag)

 

[Note that use of any image of the Wombles or Rihanna does not imply that either of them endorse the Suesspicious Minds website   – but let’s be honest, we all know that if they want to find out information about family law in the UK, they don’t go anywhere ELSE to find it]

 

You are probably asking yourself at this point, how the Wombles and Rihanna come together in the English Courts – and possibly also whether there is a musical collaboration in the offing. I will relate to you, how their histories enweave.

 

The case was about Topshop selling a T-shirt with a photographic image of Rihanna, and Rihanna suing them.

 

The Court of Appeal point out quickly that in England, unlike America, there is no such thing as “image rights” – Rihanna, as a celebrity, does not own the copyright in her image or photograph or appearance. The copyright lies with the creator of the photograph, who had consented to its use.

 

The case was, instead, dealt with under the umbrella-ella-ella of “passing off”

 

the law of passing off is not designed to protect a person against fair competition. Nor does it protect a person against the sale by others of the same goods or even copied goods. What it protects is goodwill and it prevents one person passing off his goods or services as those of another. As Lord Oliver of Aylmerton explained in Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] RPC 341 at page 406, a claimant must establish three elements in order to succeed in such a claim. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the particular name or get up under which the goods or services are offered to the public, such that the name or get up is recognised by the public as distinctive of the claimant’s goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public leading or likely to lead the public to believe that the goods or services offered by him are the goods or services of the claimant. Third, he must demonstrate that he suffers or, in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the claimant.

 

 

For this case, Rihanna would have to show that :-

 

  • She has a degree of goodwill in her name and reputation, particularly in fashion
  • That Topshop had led the public to believe that the T-shirt was a Rihanna product in some way
  • That she suffers loss or potential loss as a result of people believing that this was an official or endorsed product.

 

 

Would she win, or would Topshop be able to say that Rihanna had found love, and a hopeless case?

 

The judgment is worth reading – the original trial Judge had been very switched on and in touch in relation to Rihanna, celebrity culture, young people, viral marketing and fashion, including that the item Rihanna was wearing on the unauthorised T-shirt being a “bralet”  – and resisted, where I would have not, of saying it was a bralet for a starlet.

 

 

This was his original conclusion

 

There followed an overall evaluation by the judge of the various findings which he had made up to this point. He considered that the fact that the t-shirt was a fashion garment and the further fact that it was on sale in a high street retailer did not assist one side or the other. However, the nature of the image itself was a fairly strong indication that the t-shirt might be authorised and approved by Rihanna herself. So also, the public links between Topshop and famous stars in general and, more importantly, Rihanna in particular, would enhance the risk of consumers believing the garment had been authorised by her. He recognised that the fact that neither the swing tag nor the neck label carried the Rihanna name or the R slash logo pointed against authorisation but, in his view, this was not sufficient to negate the contrary impression. He summarised the position this way:

 

“72. … Although I accept that a good number of purchasers will buy the t-shirt without giving the question of authorisation any thought at all, in my judgment a substantial portion of those considering the product will be induced to think it is a garment authorised by the artist. The persons who do this will be the Rihanna fans. They will recognise or think they recognise the particular image of Rihanna, not simply as a picture of the artist, but as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of the value of the perceived authorisation itself. In both cases they will have been deceived.”

Finally, the judge dealt with damage. He considered that if, as he believed to be the case, a substantial number of consumers were likely to be deceived into buying the t-shirt because of a false belief that it had been authorised by Rihanna then that would obviously damage her goodwill. It would result in a loss of sales to her merchandising business and also represent a loss of control over her reputation in the fashion sphere. It was, he thought, for her to choose which garments she endorsed. In all the circumstances, Topshop’s sale of the t-shirt without her approval amounted to passing off.

 

 

I enjoyed the detail that Topshop had commissioned some market research prior to the trial, getting people to look at the T-shirt and comment as to whether they thought it was an official piece of Rihanna merchandise. They called the author of that research.

 

Sadly, as she was a trainee solicitor working at the firm representing Topshop, one might think that she wasn’t the most impartial witness ever to take the stand. I think the Judge was very kind about that

 

 

 

Mrs Armstrong is a trainee solicitor in the defendants’ solicitors currently seconded to the legal team at Arcadia, the parent group of the defendants. She gave evidence of efforts she had undertaken to find out if Topshop staff were aware of any feedback from customers concerning the t-shirt. She was a good witness but I am not satisfied the exercise Mrs Armstrong described was sufficiently rigorous to establish the proposition advanced, that there had been no comments or relevant feedback relating to the product.

 

 

But where, Suesspicious Minds are the Wombles? Do not worry, I am about to go with the Orinoco Flow

 

 

In the original judgment, there are a number of legal authorities referred to. Two stood out for me

 

In the 1970s there were a number of cases in which merchandising rights were not found to exist before the English courts. These included Tavener Rutledge v Trexapalm (Kojak Lollipops, the “unauthorised” local lollipop retailer succeeded against the makers of the television program) [1977] RPC 275

 

 

[I remember those Kojak lollipops! Also this story reminded me that when I was eight and a barber asked me how I wanted my hair cut (the only acceptable answers at the time being “short back and sides” or “just a little bit shorter all over”) I instead said “Well, I like the police, and I like lollipops, but I don’t want to look like Kojak”   – this being the first time I wrote my own material rather than relying on the Big Daddy bumper joke book. Note for Neville, Kojak was a TV detective in the 70s who had two gimmicks – he was bald, and he sucked lollipops. He also had a catchphrase, see next gag]

 

For God’s sake, Suesspicious Minds, I hear you cry. I did not start reading an article called “Rihanna, who loves you baby?”  – where the chuff are the Wombles?

 

The next merchandising authority where a celebrity was used to endorse a product without that celeb’s permission was this:-

 

Wombles v Womble Skip Hire (skips for collecting rubbish branded Womble, injunction refused) [1975] FSR 488

 

 

 

[It is beyond the scope of this article, but the case that altered the Wombles precedent involved Teenaged Mutant Ninja Turtles. I am SERIOUSLY thinking about becoming a lawyer specialising in “passing off” cases if I would get to bring Kojak, Wombles and Ninja Turtles to Court in my bundle of authorities]

 

 

I can’t really think about Wombles v Womble Skip Hire without envisaging the actual real wombles becoming outraged and sitting in a solicitors waiting room and bringing the case. Orinco sat behind counsel with his nose in a bowl of porridge, Tobermory with a pencil behind his ear rebuilding the witness box and Madame Cholet checking out the RCJ cafeteria.  Or a procession of them walking purposefully down the hallways  (possibly with a Womble cover version of “Little Green Bag” playing in the background)

 

But even better, in my mind, is that at some point, Rihanna’s legal team had to tell her that there was a case that would help in her litigation and that it is about Wombles. And them having to explain to Rihanna what a womble is. For some reason in my imagination, Rihanna’s lawyer sounds like a New York wise-guy (which he or she absolutely is not, in real life, in any way, and this should not be construed as any suggestion that they are anything other than amazing human beings)

 

“So, they’re like sort of bears, see, but they wear clothes and hats. And they have snouts, and they have bright black shiny noses and one of them eats porridge and falls asleep – like all the time. That one is Orinoco, see?  And the main man, he’s Great Uncle Bulgaria, and he sends his crew out every day to find a copy of the Times for him. They all live in a burrow, and the burrow is wallpapered with old newspapers. And they have a French chef, and she’s a womble too – they call her Madame Cholet. You know the Smurfs, right? Like smurfs, only not. Both have an old man leader, and only one girl. But wombles, they ain’t blue “

 

“Are you billing me for this?”

Rihanna wins the Court of Appeal case, just as the Wombles won their own case about protecting other people using their image to sell unauthorised products. So Rihanna, you’re a womble.

 

 

 

 

Disney Character Rights Blog

There have been a lot of decisions recently by the Disney Court of Character Rights, sitting in Never-Never Land. Here is a round-up

Simba v Scar

In this case, Simba brought a case for breach of article 6, claiming that he was not given a fair trial against allegations of murdering his father Mustafa and that his uncle Scar in effect banished him from the Kingdom, thereafter seizing the throne.

The Court held that Scar was not in breach of Article 6, which does stipulate that in Act One, the antagonist is entitled to pass judgment and sentence on the protagonist on fairly superficial or even fabricated evidence and that the general population will go along with this PROVIDED that in Act Three there is the opportunity for redemption and forgiveness. The Court were persuaded by Scar’s evidence that prior to the death of King Mustafa, the Applicant Simba had been heard jauntily singing a song to the effect that he just couldn’t wait to be King (this being prima facie evidence of his desire for his father to die)

Fundamentally the Court felt that bringing this claim in Act One was premature and that Simba in the spirit of the Disney Character Rights Act ought to wait until Act Three to see if the injustice is remedied.

The Court found that Scar had given every reasonable opportunity for an Act Three turnaround – he had adopted a suspicious name (Scar), he had a suspicious British accent (see also Mowgli v Shere Khan) and he had properly followed the principles that Evil Antagonists Should Be Bad Rulers in somehow bringing hunger and misery to a previously thriving and colourful kingdom in a remarkably short period of time.

They did however feel that Scar’s actions in allocating two hyenas Rozencrantz and Guildenstern to be Simba’s comedy sidekicks, and the choice of song “Hasa Diga Ebowai” to be in breach of all regulation and guidance on inspirational comedy sidekicks (see also the Court’s previous decision in Ariel, where the antagonist’s choice of a rotting alcoholic squid for a comedy sidekick for the protagonist was quashed and replaced with a cheerful upbeat crab)

The Court therefore ordered that two more suitable comedy sidekicks be provided and they recommended that the song be more upbeat, suggesting “Hakuna Mutada”, which they explain means no worries for the rest of your days.

Advocates are asked to take note of the Court’s remarks in the judgment that “a little bit of Elton John may be considered acceptable, but two hours of it is a bit much”

Prince Hans of the Southern Isles v Anna

Prince Hans was claiming breach of Article 7, “Right of Princes to marry Princesses” in relation to Princess Anna’s decision to break off their engagement and marry Kristoff, a commoner ice-farmer instead.

The Court held that although Article 7 has widespread applicability, it was wrong for Prince Hans to assert that it gave him the right to marry a specific and identified princess rather than just a generic right that he would marry A princess.

In relation to the claim that Princess Anna marrying a commoner would inexorably lead to other Princesses marrying people who were not princes and thus lead to it being impossible for Article 7 to be satisfied, the Court felt that this had some force, but cited as precedent earlier decisions of the Disney Court of Character Rights in relation to Characters falling in love with people from a different social circle

[Lady and Tramp – in which the re-enactment of the spaghetti-eating sequence caused one Judge to state in his judgment that “It nearly broke my heart” and the later case of Thomas O’Malley (The Alley Cat) and his marriage to an cat who was so posh that she wore a necklace. ]

They determined that the inherent nature of Princesses to want to marry Princes was so strong that an occasional deviation such as this would not set a precedent. (One minority judgment held that once Kristoff married the Princess he would become a Prince anyway, thus satisfying Article 7)

The Court further held that in relation to Princess Anna breaking off the engagement to Prince Hans, his failure to be her One True Love and kiss her to break a curse was a material breach of his One True Love article 9 duties towards her, compounded by his later attempt to murder her, and her sister. Anna was therefore entitled to terminate the engagement.

Additionally, as the engagement had never been approved by the defacto Queen, Elsa, it was questionable whether there was in law, an engagement to break.

The Court determined that Prince Hans “had had it coming” and declined to give him the relief that he had sought. In short, they concluded that he should let it go. [The same minority judgment opined that “Princess Anna, is indisputably hot, but it is plain that she is also high-maintenance and pretty tiring and Hans might be best to consider it a lucky escape. I myself had had enough of her after about ten minutes”]

Mirror Mirror v Disney Court of Character Rights

This is satellite litigation arising from Snow White v Wicked Queen, where Snow White established that administration of a poisoned apple leading her to fall asleep was a breach of her article 5 right to liberty. (Who can ever forget Lady Hale’s moving song “A gilded cage is still a cage”? )

Within that, evidence was heard from the Wicked Queen’s mirror, particularly as to motivation and intent. The mirror was only able to answer questions that were put to it in rhyming couplets (the first of which should be related to the mirror’s geographical location)

That led to questions being put to the witness such as “Mirror Mirror on a kite – Did the Queen intend to detain Snow White?” and “Mirror Mirror on the quilty – do you say the Queen is guilty?” and from those representing the Wicked Queen – “Mirror Mirror resting on bacon – could you perhaps have been mistaken?” and “Mirror Mirror in a bath of acid – wouldn’t you say the Queen’s overall nature was placid?”

For such questions, the mirror was hoisted up on a kite, or laid on a quilt, or in the worst example, put in a bath of acid for the duration of the question.

The Mirror claimed that this amounted to inhuman and degrading treatment in breach of Article 3. Sadly, the Court were unable to explore this claim properly without the Mirror being hoisted up onto a kite or such again, with the very first question proposed

Mirror Mirror down the drain – how do you establish your claim” being in itself potentially a breach of article 3

The Court settled this claim by writing the Mirror a substantial cheque and asking it to go away.

 

Sleepy v  Doc and the Six men wearing shoes on their knees band

 

Litigation over the royalty rights to the original songs created by the Seven Dwarves  (Hi Ho, Hi Ho being the major hit of the original band) rages on. Of the original line-up, only Doc is left in the band, and he claims that he wrote all the original material and is entitled to perform it with the Seven Dwarves tribute band. As readers will know, Dopey signed away his rights for some magic beans, Sneezy is in his fifth year of rehab, Grumpy is now in a death-metal band, Happy proclaims himself content with the situation, and Bashful was too publicity shy to enter the litigation, leaving only Sleepy to litigate. Progress has been slow, due in part to narcolepsy in the witness box.

 

Buzz Lightyear v Carbolic Smoke Ball Company

Over in Pixar litigation, this case continues into its seventh year, with the Court hearing from expert witnesses as to whether “To Infinity and Beyond” was a contractual obligation to which Mr Lightyear could be forced to meet or rather a puff of advertising. Mr Potato-head remains in custody, having taken the stand as a character witness for Mr Lightyear and then having appeared again subsequently using facial pieces stolen from Mrs Potato-head to give evidence whilst pretending to be her.

Mr Lightyear’s request to call Andy, his owner, as a character witness was refused, on the basis of the application of the Uncanny Valley principle (in short that the real people in Pixar just give everyone the creeps because they just don’t look right)

 

 

In other news

The big money divorce of Perdita v Pongo has reached a conclusion. There was considerable consternation in Court when Perdita revealed that Pongo had been pressurising her into starting a second litter. The Puppy Maintenance payments ordered by the Court are believed to be the biggest on record, and the schedule of Puppy Arrangement Orders setting out when Pongo would spend time with each puppy ran to seven lever arch files.

Baloo’s cookery programme has been taken off air after several claims for food-poisoning due to viewers following his advice to “take a glance at the fancy ants, and maybe try a few” were settled out of Court. There are also allegations that Baloo had been moon-lighting as Little John, and his showbiz career appears to be in tatters.

The lower Courts have confirmed that in Backtrack v Mowgli that when King Louis stated baldy “Oh, Shooby-Doo, Nothing Else Will do –ooh-ooh” he had never intended to mean that literally nothing else will do. Nor did he literally want to walk like you, or talk like you. It’s plain to see, that someone like Louis, can learn to be, like someone like you.

[And I’m sure that you are now humming I wanna be a man, mancub, and stroll right into town – so here it is for you. ]

 

 

If you don’t happen to read Adam Wagner’s UK Human Rights blog which inspired this pastiche, I’ll recommend it to you. It has a much broader focus than this blog, and you can usually find something very thought-provoking there – whether it be what should be done with King Richard II’s bones, whether people should have the right to die with dignity or where the limits of religious conscientious objection to abortions stretch in relation to Catholic midwives – and today, why Strasbourg was chosen as the correct venue for the European Court of Human Rights – it is nothing to do with geese, apparently.

It is immensely useful when the Press are having one of their periodical fits of morality, and you want to find out a bit more about what’s behind the story.

http://ukhumanrightsblog.com/

Why Tolkien never made it as a Court reporter

 
Amidst the jottings, pipes, story fragments, maps, papers and footnotes recovered from J.R.R Tolkien’s study, this, his sole attempt at a law report has been found. It gives a glimpse into why he did not follow that profession further.  He was far better at lore than law   (I’m SO sorry)
Re B (A child) 2013 or “Heroes walk 2000 miles to reach a volcano, and then get a lift home from giant eagles* who could have pitched up much earlier on and saved everyone the bother”

In a hole in the ground there lived an appellant. The appellant had great cause to be vexed, and the burden of this vexation lay heavy upon their brow and their heart. They sought counsel from a wizard, Feehan the Frank, who is sometimes named Mithrandil, and from his apprentice McKenna, who is sometimes named Anna. Together, they embarked upon a Quest, such as was sung of in the days of yore, when dragons were uncracked eggs and the fire had not yet been lit in Mount Doom.

After many perils, and walks across this map

[Editor’s note – there were then inserted fifteen hand-drawn maps and labourious detail about what the party ate at every stop they made]

And after these trials, it came to pass, there in the lands of London, where the mists swirled and the streets were busy with trade, that the Council of the Wise, sometimes named the Supreme Court met, to decide what was to be done with adoption.

The Council of the Wise was divided on many things concerned with adoption – some felt that it was a good thing, a weapon to be used to tackle great evil, some feared even the mention of it, and still others felt that it was a thing that would corrupt all who attempted it.

Finally, after, much quarrelsome trouble, loaves of lambas bread and many flagons of warm foaming ale, the Council were able to agree upon this much at least.

“One does not simply walk into adoption”

Lady Hale, daughter of the evening star, she who has so often been the carrier of a Minority judgment, spoke with iron in her voice and fire in her eyes. She reminded all those who saw her of Cate Blanchett **

“it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide”

It is said by the sons of men that Feehan the Frank, had brought this precious document before the Council, and he had presented his case to them, declaiming that the forces of adoption were rallying, as they had done long ago, when the Children of Men were young to this world and the halls of the Dwarven Kings still rang with the sound of gold being mined and metal being forged. Feehan, keeper of Counsel to the Queen, had urged the Council to act, and to act now, and to act decisively.

He gave them a small scroll, on which was inscribed the word “require” – said to have been made by the Parliaments of yore. It was, said the wizard, for the Council of the Wise to decide what was meant by the word “require” on this scroll.

For if they did not, he said, it might be that the Halls of Strasbourg would take their own action and destroy adoption, fearing that it might be used for ill.

Lady Hale, she that would later take up against the Deprivation of the Liberty and do her own blood-soaked battle against the Cheshire of the West, rallied to his cause.

She spoke of the decisions made by the Council of Europe, who are not well-loved by all who sit upon the Council of the Wise, for the Europans have their own ways and thoughts and the Ways of Europans cannot always be fathomed by the Children of Albion. Nonetheless, she said, the Council of Europe know of the old things, they know of adoption, and they know of the evil that can stir in the hearts of the Children of Men.

“Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do,” she cried, and she took the ceremonial mace that had been gifted to the Council of the Wise by Lord Denning, son of Benning and cleft in two the Table of the Astute, which had been seized from the goblin halls of Berwick-upon-the-Tweed by the early rangers. The Table cracked and the sound rang out in the grand hall of the Council.

“A Fellowship!” she declared, “A Fellowship must be formed, to take this powerful tool – the word “requires” and to keep it safe and protect it. A Fellowship who will hear our words and take adoption to a place where only Nothing Else Will Do!”

At this critical and dramatic moment, Lord Wilson, son of Milson, grandson of Zilson, took it upon himself to sing a song. It was a grand song, a song that would be much remarked upon in the Shires and would be sung by the Children of Men when dark times later came.
[Editor’s note – the song is recounted here in full, and lasts for nine pages. The most meaningful portion of the lyric is quoted here to give the flavour and indicate that you are not missing out by not seeing the full thing “Adoption, bedoption, it is surely the only option, it is the only thing that is viable, that is not deniable, there is no half-way house, there is no half-way mouse. Lo-Billy-Bonny, Show a brave leg, Lo-Bonny-Billy! Ho! Ho! Rack a grim jinty! Ho! Ho!”]
At the end of the Council meeting, wise soldiers from the Court of Appeal spoke out.

The Roll-Master said “You have my sword”

And the President pledged his bow

And Lady Black,declared that they could have her axe as well.

[They were later joined by StRyder]    (again, I’m SO sorry)

So the Fellowship of Nothing Else Will Do was formed, there in the Holistic Chambers of Bs. The Holistic Chambers of Bs were a formal place and all of the architecture was in perfect proportion, and there were weighing scales in every direction that one could look upon. No linear corridors were there at any point during the magnificent building, making it treacherous and difficult to travel from one place to another in any straight line and instead one reached ones final destination by visiting every other realistic place in the Chambers seemingly at once.

It was said that not even the architects themselves of the Holistic Chambers of Bs would be capable of navigating its passages and hallways without faltering or stumbling, yet others hold that this is a myth and a lie and that the architects would always walk a true path.

[Editors note – Insert many many more songs and inconsequential characters who seem to exist for the twin purposes of being firstly a deus ex machine and secondly to sing the interminable songs. One of them, Chris Grayladill, appears time and time again, singing comedic songs about how his attempts to cut a piece of wood end up with him injuring himself and looking foolish]

Would the Fellowship of Nothing Else Will Do hold? Would the corrupting power of adoption drive a wedge between them? And what of the creature that watched them from afar, muttering “Adoption, my precious…” and occasionally saying his name “Gove-um”?

Michael Gove

Michael Gove

Gollum

Gollum

 

[* seriously, the damn giant eagles turn up at the end of both stories to save the day, with no explanation as to why they didn’t rock up much sooner. If Tolkein had written Apollo 13, bloody eagles would have flown Tom Hanks & Co home from space. Casablanca  – giant eagles come and take Rick to Ilsa.  Murder on the Orient Express – giant eagles did it]
[** Do not confuse the Cate Blanchett in this piece with the Cate Blanchett of other blog posts meaning “free reign” or “unlimited budget”.  And if you are a fan of Cate Blanchett who has come to the site because of a google search, I apologise for wasting your time. In fact, I’ll extend that apology to all of my readers. Sorry!]

 

The new logo for the Legal Aid Agency

The new logo for the Legal Aid Agency

Are YOU the Lord Chancellor? Find out in our quiz

This post guest-written by Misty St Clair, Agony Aunt of Jackie magazine in 1984 and was written by her at that time, following an excess of Advocaat and a bout of unexpected fortune-telling and a descent into legal matters – her column was not eventually run that week, the editor considering it to be “somewhat niche, dahling”.

 

(Suesspicious Mind note :- This was going to be by Geneva Minty, Agony Aunt of Just Seventeen magazine, but I didn’t dare face looking on Google Image for “Just Seventeen” )

Horses horses horses!  (and law)

Horses horses horses! (and law)

 

Hey Girls!

A lot of young adults write to me with their problems –  “When I marry George Michael, will his chum Andrew want to be hanging around all the time?”   or  “My friend says you can’t get pregnant if you eat four After Eights straight afterwards”  or “How can I apply lipstick like Robert Smith”, but one question comes up more than any other.

It is this  “Misty St Clair, am I the Lord Chancellor?”

And it is time that this issue, which troubles so many adolescents, was answered. Find out, in this simple quiz.

 

1.  Which of these are real Judges?

 

A   Jonathan Sumption QC

B  John Deed

C  Louis Walsh

 

 

2.  Your Government intends to slash and burn the legal aid budget , what do you do?

 

A  Lobby in Cabinet for the benefits of legal aid, and educate your colleagues on the Rule of Law

B Help push through the reforms, but commit to provisions that ensure that nobody will have their human rights breached

C Pretend to do B above, but secretly issue guidance that means that those provisions will hardly ever get used, then lose in the Court case about it

 

3. An idea emerges that to please the Daily Mail, the Government should ensure that foreign nationals don’t get legal aid, do you?

 

A.  Resist on the basis of unfairness and discrimination

B  Reluctantly advise that it isn’t possible

C  Immediately issue Regulations that you had no legal power to issue and lose in the Court case about it

 

4. In order to cut costs, you are asked to ensure that victims of domestic violence have to produce documentary evidence that puts them at risk of harm, do you?

 

A. Resist on the basis that the law exists to protect the vulnerable

B  Introduce a need for documentary evidence but make it reasonable

C Introduce a need for documentary evidence, make it near impossible to satisfy, and lose in the Court case about it

 

5.  You are asked to come up with a policy that will show how tough the Government is on prisoners, do you?

 

A  Refuse and explain to Cabinet that no less an authority than Winston Churchill counselled that one judges a country by how they treat their prisoners

 

B Come up with something which looks tough but ultimately will never be followed through

 

C Ban them from receiving books, claim that this was never intended, lose in the Court case about it – but even then, don’t reverse the policy until after Christmas, ensuring that the unlawful and unpleasant ban on books still stops prisoners getting books as Christmas presents

 

6.  Imagine that you are the manager of a football team  (ask your dad or big brother) called “Judicial Review United” and you lose six matches in a row, do you?

 

A  Resolve to train harder, play better and win the next game fair and square

B Grumble about refereeing decisions but keep playing the same way

C Try to change the rules of football so that it is impossible for the other team to turn up and play

 

 

 

How did you do?

 

Mostly A’s   +    You have nothing to worry about – it may seem sometimes that you have some Lord Chancellor tendencies, but really it is nothing to be ashamed of. Many young people go through this phase and are idealistic and naive and think about experimenting with becoming a vital check and balance on the excesses of the State, and they just come through it. More people than you know. You are not alone!

To be honest, many of your ideas about what Lord Chancellors are like are very old-fashioned – the world has changed a lot, you know!

 

Mostly B’s  –  there is a risk that you might be persuaded by more ‘grown-up’ friends to dabble in Lord Chancellor-ness, but you are far too sensible to really get caught up in it. Just remember, as Misty St Clair always says  “The Coolest Thing you can ever do is Say No Thanks” .  Just like Zammo in Grange Hill, you can come out the other side and live a happy and rich life.

 

Mostly C’s  – There is no easy way to break this to you, there is a good chance that you are reading your sister’s magazine in the hope of finding some problems that help you understand girls. You are destined to become the Lord Chancellor. You may be thinking that you can avoid this fate by never studying law, working in law, having any interest in law or any knowledge of law. It will not stop what is foretold.  For reasons that are inexplicable, you and you alone, will still become Lord Chancellor even though you have no working concepts of anything you would need to know to do the job well. You will also become balding, I’m afraid. That will teach you to read Jackie – stick to Shoot or Victor and you would be much happier.

 

Till next time, I’m Misty St Clair and remember, “a problem shared is a problem that lots of young boys will read secretly and giggle over”

 

Nothing says fun like a boy band holding scaffolding. That and LAW!

Nothing says fun like a boy band holding scaffolding. That and LAW!

Figments of imagination (so many figments)

 

When a High Court Judge opens their judgment with a line like this:-

 

The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.

 

Then I am pretty much Renee Zellweger in Jerry Maguire – “you had me at hello”

 

A .P. Herbert is my inspiration for legal writing, and his Misleading Cases one of my favourite books – I lost my copy in the RCJ last year and I still feel the ache of its absence when the weather is cold…

 

Sometimes, when you see a Judge criticise a person, you have a degree of sympathy – anyone can make a mistake, anyone can make a poor decision, anyone can have a bad day. Sometimes, you think “there but for the grace of God”

 

Not this time.

 

Islamic Investment Company of the Gulf Bahamas Ltd v Symphony Gems Ltd 2014

 

http://www.bailii.org/ew/cases/EWHC/Comm/2014/3777.html

 

is not, as you will have gathered from that lofty case name, a family case.

 

So you don’t HAVE to read it – it tells you nothing illuminating about family law. But if you make the time, it will pay off, I assure you.

 

In this case, a Mr Mehtra (RM) had found himself in tricky litigation in the commercial Courts. It involves a debt of £10 million, which the Court previously ordered he should pay, and now interest on top of £4 million.

 

It is, pretty self-evidently, a tricky case.

 

It has been made more tricky for RM because for about three years, his lawyer Mr Benson, formerly a partner at Byrne and Partners (now not) had been running the litigation in a peculiar way.

 

By peculiar, I mean making things up. And by making things up, I don’t mean “Oh, Mr Mehtra, I was just about to ring you, I’m so glad you’ve called”.

 

Nor do I mean ” Have you lost weight? Seriously, have you been working out or something?”

 

I mean, fabricating every single thing that he told his client, including documentary evidence to support that.

 

I’ll quickly make it plain that the Court were totally satisfied that Byrne and Partners knew nothing about this and were not involved in any way.

 

Also that the Court had not heard from Mr Benson, and that it is (theoretically) possible that he has a good explanation for it. I can’t for the life of me imagine what that might be, but there could be one. If he instructs Perry Mason, Atticus Finch, Clarence Darrow, Mrs Jo Mills, Edward Marshall Hall, Kavanagh QC, Olivia Pope, Phoenix Wright, Maxine Peake out of Silk and My Cousin Vinny they might jointly come up with one on his behalf, but I doubt it.

 

By way of flavour (and there’s loads and loads of this, I’m just pulling out some examples). Remember in relation to all of them that RM had instructed Mr Benson to make an application to Court, but that at no point did Mr Benson do anything about it in the real world, he instead just made up a detailed and plausible account of how that was going.

 

So he was :-

 

Telling his client that a silk had been briefed for him (nope) and then that the silk had been changed (well, yes, but only changing one imaginary briefing for another) – in all, four silks were dragged into this case on a purely imaginary basis.

 

Telling his client that the silk was dragging his heels and that’s why things were taking so long (well, no, because he’d never actually told the silk anything about the case or asked the silk to do anything)

 

Sending the client letters to the High Court chasing up about hearings (having never sent any application to the High Court, he obviously didn’t send letters chasing it up)

 

Sending his client fabricated orders from the High Court, culminating in even making up Judges who were supposedly making these orders

 

Sending his client a skeleton argument prepared by his silk (nope, because there was no silk instructed. He did this TWICE. )

 

Arranging a telephone conference between his client, himself and a ‘senior partner’ at his firm to discuss the case (the ‘senior partner’ was not anyone connected with the firm, but someone impersonating him)

 

Sending his client fake emails from the other side

 

Sending his client a draft letter of complaint to a High Court Judge about the delay in the case (obviously never sent, because the High Court had never been asked to do anything, so there was nothing to delay)

 

Sending his client a fake judgment in his favour from the Court of Appeal – something that must have taken some effort, because as the Court observed “It runs to 6 pages and comprises 37 plausibly reasoned paragraphs”.   The original judgment was set aside and sent back for re-hearing.

 

As the Court also point out, Hence by this point Mr Benson had constructed a fiction in which RM was effectively back to square one

 

Visiting his client in Antwerp to take instructions for an affidavit which was never filed, because the proceedings were entirely imaginary.

 

Sending another judgment from the High Court following the Court of Appeal’s decision – again, entirely made up

 

Sending letters explaining that yet another silk had attended Court on RM’s behalf to lobby the Senior Presiding Judge about the dreadful delays in the case.

 

Sending emails from High Court Judges clerks about forthcoming hearings and orders

 

And yet another High Court judgment

 

And yet another appeal – which RM won (hooray, only it never happened)

 

 

And then this is where it all unravelled – as RM started to liaise with the Court about getting a typed version of the order and judgment, and the Court rightly said words to the effect of “whatchoo talkin’ bout, Willis?”

 

https://www.youtube.com/watch?v=N0-aQPbzCZE

 

 

RM instructed another solicitor, one who conducted his practice in a world where the sky is blue, and that solicitor made enquiries of the four Silks who had apparently acted on RM’s behalf, none of whom had ever heard of him. At which point, calls were made to the police and to the Solicitors Regulation Authority.

 

You might be thinking that this was all some sort of financial con, but it appears not.

 

Firstly, RM had only paid £25,000 to the firm – that sounds like a lot of money to you and I, but for commercial litigation for 3 years in the High Court and Court of Appeal with four silks, it is very small beer indeed. There is no way that the huge amount of work that was being put into this fabrication was in order to trouser £25,000.   Bear in mind Mr Benson was faking not only reams and reams of correspondence, but submissions that were from leading counsel, judgments and appeal court judgments. It would have been far less work to actually just issue the application.

 

The deception practised by Mr Benson over a period of more than 3 years, as summarised above, is rightly described as breathtaking. Until the Police and the SRA have concluded their investigations much remains unclear, including his motives. What is clear, however, is that his actions will have had a significant effect on RM (and his family) who has been strung along for more than 3 years in attempts to challenge the ACO and apparent subsequent court orders and in efforts to demonstrate that he has complied with the order of Master Miller of 17 January 2007. Throughout this time RM has been effectively been prevented from entering this jurisdiction causing obvious distress to himself, his partner and his children (who live in the UK).

 

 

The motives for Mr Benson’s actions are presently unclear. The only payment made on behalf of RM during this period is the payment of £25,000 made to Byrne & Partners pursuant to the supposed consent order dated 4 July 2011. This has now been returned. None of the other payments called for in purported court orders were made. There is some evidence that other payments may have been made to Byrne & Partners but, if so, not by or on behalf of RM. There is also some evidence of a bitter family feud and of parties who might have an interest in ensuring that RM failed in all aspects of the English court litigation. However, at present this is all speculation. Matters will no doubt become clearer as a result of the Metropolitan Police and SRA investigations.

 

 

My best guess – there was a small lie – instead of issuing the application, he sat on it, and instead of admitting that when the client asked how it was going, he lied. And then rather than progressing things, he continued to lie. And then the lies just snowballed to a point where they were utterly utterly out of control.

 

 

I hope so (because the other suggestion, that he had been paid to nobble his own client is just too dark and awful to bear thinking about)

 

This is terrible, terrible stuff. It is hard to think of an example of someone doing a worse job for their client. Lionel Hutz, attorney at law would look askance at this.

 

I feel for Mr Benson on a human level – you don’t get to be a partner at a commercial law firm dealing with multi-million pound claims without being smart, and he has clearly set fire to his career and probably stands to lose everything without any apparent gain. And throughout those three years, he was probably terrified every time he had a day off or was ill, in case someone else from the firm dealt with Mr Mehtra and the whole thing unravelled.

 

You know when you have those nightmares that someone official comes up to you and tells you that there’s been a mistake and you never really passed O Level/GCSE English after all and that as a result all of your other qualifications are flawed? Imagine that level of stress and anxiety, but for real, every day for three years.

 

 

{Before you go to bed tonight, just say to yourself “I wasn’t the lawyer in that case, and I DO really have an O Level in English”, just to avoid nightmares}

Hounds of Justice – 500th post!

Obviously, I meant to do something weighty and serious for the 500th post. But as luck would have it, the marvellous Last Week Tonight gave me a much better post.

 

If you’re not familiar with Last Week Tonight, it’s a show on HBO (and Sky Atlantic) which is a satirical news show. It happens to be both the funniest and most thought-provoking show on tv, and tackles really hard hitting stuff in amongst the light nonsense.  It’s also presented by a geeky man in spectacles, so it is close to my heart in a number of ways.

 

On this week’s show, after presenting a hard-hitting piece on how mindless and stupid bureacracy has prevented translators in Iraq and Afghanistan who risked their lives to help US forces from taking up the US citizenships that they were promised, the show tackled the difficult issue of how the law can decide really very important things BUT it is really boring and dull to watch.

 

So, they took what was already a pretty funny case (is it Unconsitutional to ban prisoners from growing beards because they might hide tiny revolvers in them) and showed how you can present that in a gripping and televisual way.  By the way, if you are drinking coffee when watching this, I am not liable if it comes out of your nose.

 

 

 

They also kindly provided raw footage and material on line, so that people could take the actual audio tapes of any Supreme Court hearing and turn it into this style of presentation, and people are already putting major decisions up on You Tube.  NOW THAT’S WHAT I CALL TRANSPARENCY.

 

I CANNOT WAIT for the next UK Supreme Court decision….

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