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A big thank you to lots of people

 

The Family Law Awards were on Wednesday night (I was too tired and emotional yesterday to post anything). I would like to give a big thank you to every person who voted for me.  If you are on Twitter, you already know that the votes were not wasted (though I was).  But not everyone is on Twitter, so I wanted to let you all know that it was a successful night and that I am very grateful for your vote and support; but even more importantly for the time you give to read and think about the pieces and your comments – even to my most argumentative readers, debate and thought and time is really valuable.

 

And huge thanks to my team, who also picked up an award, and who are not only great people to work with, but great people to celebrate with too.  And to my long-suffering wife, who has to put up with my weird random ideas and my occasional ramble of “There’s this amazing case I’ve just read about, you really won’t believe what happened”.  And to Martin and Mary and David Bingham for sharing the evening with us, and I can’t forget to thank Adam Smith for being a very cool guy indeed.

 

Finally massive big up to Harj Kaur, my great friend and supporter who wasn’t able to be there with us, but was in spirit.

 

{I apologise to anyone who hunts the Net looking for Humblebrags, this really isn’t meant to be one. I am just actually very pleased to have had an experience in family law that was nothing other than enjoyable and want to thank people who made that happen.}

The Great British Blog Off

 

As you may know, Lucy Reed from http://www.pinktape.co.uk and I are both nominated for an award in the Jordans Family Law Award  (or what literally nobody in the legal world is calling “The Jordies”

 

You can vote for either of us, and voting ends on Midnight Monday.

 

Vote here  http://books.jordanpublishingsecure.co.uk/updates/vote.asp

 

You don’t have to be a lawyer to vote, you can be a real person too.

 

Now, I know that I was wrong to take Lucy’s post on Baked Alaska out of the fridge before it was ready, and I’ve apologised for that.

I can assure you that a vote for either myself or Lucy WILL ensure that we keep the pound, that Strictly Come Dancing will continue to be available on BBC, that all of the revenues Lucy and I get from North Sea Oil will remain in the blogging community and that neither Lucy nor I will have access to Trident missiles.

 

Did I mention that you could vote here   ?

http://books.jordanpublishingsecure.co.uk/updates/vote.asp

If you have been meaning to vote, then get round to it please. You don’t want Lucy or I to have access to Trident missiles, do you?

If you have already voted, then thank you. And also, if you fake your own death and get a new identity before Monday, you could vote again, so… y’know, don’t ignore that route.

Locked door mystery

 

 

As with any of my articles, I write purely in my own capacity as a human being rather than as a representative of anyone, and this is particularly true in this case. I don’t speak for anyone other than myself.

 

 

I have become aware recently of the move in Courts (not all of them, but a worrying number) to restrict the public’s access to Public Counters.

 

What happens at these Public Counters? (or what used to?)

 

People would come in, people who had been served with court papers and were frightened or confused and didn’t know what to do and they would be given help and advice (not legal advice, but they would be pointed to where to get that advice from), people would come in and hand in the court paperwork they had filled in – and double-check that they hadn’t made a mistake with it that might otherwise delay things by weeks, people would come in to get leaflets and guidance, people would come in to explain to the Court that the hearing date that they’d just received in the post wasn’t possible for one reason or another, people would come in to issue their applications, to pay their fees, to hand in the raft of documentary evidence that would prove that they didn’t need a fee.

 

Those people can sometimes be hesitant, tentative, confused, dumbfounded, bolshy, argumentative, difficult, time-consuming, obnoxious or terrified. Sometimes all at once.  Sometimes they come to the Public Counter in dribs and drabs, sometimes as battalions.

 

Since LASPO was introduced, a lot of these people who would have had lawyers to help them resolve these concerns and fears and worries and to answer their questions and to give them the right forms, are now doing it entirely on their own. They have walked into a domain that they don’t understand, with no guide, and the only thing they can really do is ask the locals how people do things around here.

 

Which is why, of course, access to the Public Counters, becomes even more important – it is the only way that a person who is not legally trained and not able to spend an age on google trying to find things when they have no clue what they are looking for, can find out how to make a start on dealing with the Courts.

 

That in turn, placed a higher demand on Court staff – and I’m sure at the same time as this due to austerity measures Court staff and budgets were cut leaving them all having to do more with less.

 

And that is probably why so many Public Counters moved from being open from 10.00 am to 4.00pm to being open for half a day, to being open for only prior appointments and urgent cases, to this current situation where you can walk into certain Courts in this country and see a door that says “Public Counter” on it, but the door is locked.

 

I don’t, personally, feel very happy about that. I don’t, personally, think that this is a very good thing at all. I think, personally, that this is a poor way to treat litigants in person who now have nobody to help them penetrate the thickets of complexity and jargon and bureaucracy that faces anyone trying to conduct Court proceedings for themselves. I can understand the thinking behind it – to let the hard-pressed Court staff get on, uninterrupted, with the huge volume of work they have to do and deter members of the public from coming in and asking questions and creating additional work. I understand it, but I don’t like it.

 

That made me turn to the recent High Court decision on the Lord Chancellor’s introduction of a “Residency” test to get legal aid. This was a statutory instrument, created under LASPO powers (or rather, it purported to be, but wasn’t), that would take the cases where legal aid WAS still available, and make them available only to people who could show that they had lived in the UK for twelve months.

 

 

The Queen on the Application of the Public Law Project v the Secretary of State for Justice 2014

 

It is a great judgment, because it upholds the rule of law, upholds rights and gives some very real concrete examples of people and cases who wouldn’t get legal aid if the “Residency” test came into being.  It completely rejects the statutory instrument as being lawful and makes it plain that there was no power for the Lord Chancellor to introduce these measures, which were purely discriminatory.

 

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/07/plp-v-ssj-and-other.pdf

 

 

It is also worth reading for this bit, which might well be the rudest that any Court has ever been to a sitting Lord Chancellor, and rightly so.

 

It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP [2011] 1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14”. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013).

 

Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :

 

“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?

And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).

 

 

 

But the bit that I was particularly interested in, given the locked door that I have to walk past every time I go to Court was this paragraph

 

 

56.The constitutional right of access to the courts was further considered by the Court of Appeal in R (Children’s Rights Alliance for England) v Secretary of State for Justice [2013] 1 WLR 3667. Again, the case is not concerned with discrimination. It decided that the obligation to provide a right of access to the courts did not include an obligation to find and provide information as to legal rights to those with potential claims. The constitutional duty was described by the Court as a duty not to “place obstacles in the way of access to justice” (at paragraph 39). That description of the nature of the duty, that it is a duty not to impede access to the court, is binding on this court

 

The State has a duty not to place obstacles in the way of access to justice. Last time I checked, a locked door was an obstacle.

 

Those Courts that have locked the door to the Public Counter have a sort of triage system, whereby a member of the public can get in by prior appointment, or by convincing a member of the Security staff who man the doors (and search people for knives, alcohol or drugs) that they should be let in. If that person doesn’t happen to WANT to discuss their personal and private business with a security guard, or in an open waiting room where there might be people coming in at any time or queuing to undergo their searches, aren’t going to get in.

 

Might THAT be Her Majesty’s Court Service placing an obstacle in the way of access to justice?

 

Bearing in mind that one of the reasons to go to the Court Public Counter is to get your application form to start your case, so that you can get justice, or to deliver your form to court staff and make sure that there is nothing in the form that you have filled out wrong because you didn’t understand it.

 

If Barclays Bank (other banks are available), decided that during office hours they were going to keep their Public Counter behind a locked door, I’d think that was pretty awful customer service. But at least Barclays customers could vote with their feet and go elsewhere. The people wanting to use the Courts Public Counters don’t have that luxury.

 

I am aware that there are those in the Ministry of Justice floating the ideas of Courts becoming ‘information hubs’ where the public can go to find out in one place everything they need to know to resolve their disputes, probably by resolving them without ever going before a Judge. I wonder if those information hubs will have locked doors too?

“You’re going to fight THAT?”

I have had on my mind recently the old-fashioned notion of Trial by Combat, where one could elect a champion to fight on your behalf, and if your champion won, then you would win your case. Trial by combat is no longer lawful in this country, despite the noble efforts of Mr Leon Humphreys, who sought to persuade Magistrates that rather than pay a £25 fine for a trivial motoring offence, he would instead do battle with a champion nominated by the DVLA.

 

But of course, our British legal system, given that it is adversarial, does have an element of trial by combat to it. Both sides select their champion (or advocate), they clash swords or rather words and at the end a victor is declared.

That raises a difficult philosophical issue about justice – when the Judge makes their decision are they setting aside the performance of the respective champions and just getting to the pure Truth of the case, or could the outcome stand or fall on the selection of the Champion? If one swapped over the briefs, might the outcome be different?

It seems that in a fair judicial system, it ought not to matter very much who speaks on your behalf – the Truth should out, and the Judge get to the bottom of what really happened. But very often in care proceedings we are trying to sum up years and years of the lives of several people and reduce them down to 350 pages, and then questions are asked about those pages over three or four days.  There must inevitably be a degree to which the Judge is guided by what it is they are shown by the advocates – what is drawn out and brought to life, and those aspects that are not dwindle in significance.  Of course, the Court is not a rubber stamp, and will have read into the case and picked up on details and issues that neither advocate touches on, which is why they are allowed to ask their own questions.

 

It is really difficult to tell how much of a judicial decision is that the Truth is there and is laid bare in a judgment (just as Pythagorus’ Theorum was true before he set it out and would remain true if he had never found it and someone else had), or whether the questions are more akin to those history essays that ask you to set out the causes of World War I and there’s a range of possible Truths, possible answers – some more vivid and likely than others.  Is the Truth that we find in judgments a Universal Truth, or a particular version of the Truth?

 

I had the pleasure, when I was training, to see a lot of advocacy – this was in the times when lawyers used to ‘sit behind counsel’ and watch the whole final hearing and take a note – that exposed me to a huge range of advocacy, and I can tell you, when you see someone really shine at it, it is a thing of beauty.  I have seen Silks get brain surgeons to eat out of the palms of their hand, seen confessions gently extracted from a witness who had no idea they were going anywhere near such a thing, heard questions asked that make everyone in the court room want to mouth, in the style of Dan Maskell, tennis commentator “Oh, I say”. I’ve also seen the flip side, when blind alleys were stumbled into, points not taken, the issues not grasped, witnesses pushing the advocate around.

 

It isn’t always even that there are good advocates and bad advocates (though there are such creatures) – sometimes it can be good days and bad days, sometimes even that Sir Ronald Rutt is a good match for a very forensic case with lots of fine detail and voluminous notes to pore over and draw the witness into, but not such a good match for a combative witness like Mr Albert Haddock.

 

Sometimes I have been on the wrong side of an opponent who really sang, and for whom the Court of Appeal’s delicious phrase “The purifying ordeal of cross-examination” was particularly apposite. It can be a bruising experience watching what appeared to be a good case on paper become merely confetti.

 

Those are some idle musings of mine, which serve chiefly as an excuse to crowbar in a photograph of the Red Viper of Dorne, who I think would have made rather a good barrister.

 

Oberyn Martell

 

 

 

 

 

You know what a pig IS, don’t you? If not, I’m afraid there is a great deal of tedious spadework ahead of us

 

Not much juicy law about this week, so a diversion to America, courtesy of Lowering the Bar.

 

This is an extract from some genuine cross-examination, which ends up being so good that the New York Times actually made a video re-enacting it  (by way of context, the person being cross-examined here has made use of a law allowing the State to charge 2 cents a page for PHOTOCOPYING to charge 2 cents a page for material copied onto a computer disc, which can be done in 5 seconds with the push of a single button, and is, some might say, rather a different action to the act of photocopying, so the plaintiff’s lawyer is trying to get the deponent to admit that he understands what the nature of photocopying IS, and the deponent (witness) is trying to avoid saying anything to that effect)

 

http://www.loweringthebar.net/2014/04/what-is-a-photocopier.html

 

This is my favourite exchange

 

Plaintiffs’ Lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Deponent’s Lawyer: Objection.

PL: Any photocopying machine?

Deponent: When you say “photocopying machine,” what do you mean?

PL: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?

D: No. I want to make sure that I answer your question correctly….When you say “photocopying machine,” what do you mean?

PL: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

D: I just want to make sure I answer your question correctly.

PL: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.

D: I just want to make sure I answer your question correctly.

DL: There’s different types of photocopiers, Dave.

 

….

D: I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like –

PL: Are there any in the Recorder’s office?

D: — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “photocopying machines” –-

PL: That’s a great point.

D: — instead of trying to make me feel stupid.

PL: If you feel stupid, it’s not because I’m making you feel that way.

DL: Objection

 

 

 

 

optimistic litigation

You might, by now, have heard of Mr Purisma, an unfortunate fellow who got bitten by a dog on a bus, and sued as a result.  He included a variety of other grievances in his lawsuit, including that he was routinely overcharged for his coffee at an airport and that Chinese tourists took photographs of him.

What makes it newsworthy is the value he sets on his claim. Two thousand undecillion dollars.  If, like me, you are thinking that this is the sort of number that some six year old invented “A gabillion-zillion-million-bajillion” then you are wrong.  The amount, in dollars of his claim is $2,000,000,000, 000,000,000,000,000,000,000,000,000

I didn’t come across this claim on the legal blogs, though it has hit a few now (damn you, other people writing on something I’d hoped to write about), but on the uber geek site xkcd.  And I’ve been wanting to have a chance to plug xkcd for ages now, and this seemed like a good opportunity.

 

One thing that Randall Munro, the creator of xkcd, does every week, is take a ludicrously out there question and apply real life science and maths to it – in the past he has explained what would happen if a baseball pitcher could throw a ball at the speed of light (which is mind-boggling), whether you could make something take off and fly by firing sufficient machine guns down at the ground, how many people a T-Rex would have to eat a day to survive, and dozens of others.

 

On this one, Randall ignores whether the lawsuit is plausible and whether the quantum is reasonable, in favour of just working out if there is currently that much money in the world (no), and if there would ever be (no) and if it could ever be produced before all the stars in the universe go out (no), or whether if you melted down the world and sold it to aliens for scrap that would pay for the compensation (no) but he does this in a beautiful and stylish way that I can only commend to you all

By weight, the single most valuable thing that’s been bought and sold on an open market is probably the Treskilling Yellow postage stamp. There’s only one known copy of it, and in 2010 it sold for $2,300,000. That works out to about $30 billion per kilogram of stamps. If the Earth’s weight were entirely postage stamps, it would still not be enough to pay off Au Bon Pain’s potential debt.[7]

 

Culminating in working out that if the respondent hired the most expensive lawyer on earth [who charges apparently $1,800 per hour], and every single planet so far discovered in the universe was populated entirely by clones of that lawyer, and the respondent employed them ALL, the costs would still be dwarfed by the lawsuit, and it would be worth fighting the case.

 

http://what-if.xkcd.com/96/

 

My open submission to become Chief Football writer for the Telegraph

 

 

West Midlands in Rapture as Simon Gerrard lifts the Premiership Cup for Liverpool

 

After nine long years, the West Midlands was ready for a party and they certainly got one, as Liverpool clinched the Premiership Cup, causing all fans in the area to rejoice and sing at the top of their voices. Simon Gerrard, their captain, known as “Simey Gee”,  lifted the trophy aloft, saying that “This one is for all the Yam-Yams who have supported this club for so long”

Liverpool, owned by the Russian billionaire, Roman Abramovich, finally triumphed in the Premiership Cup, beating Newcastle 2-1 whilst their rivals West Ham succumbed to a 2-0 defeat to Manchester City.

 

How about it? I think I come up to the rigorous standards of accuracy, fact-checking and in-depth knowledge of my subject that we have come to expect.

 

http://www.telegraph.co.uk/news/uknews/law-and-order/10820105/Journalists-check-facts-that-judges-dont.html

 

 

[There are miscarriages of justice in family cases, there are bad social workers, there are mistakes made, there are people to fight for, there are wrongs to be remedied. I'll give two names that are in the public domain and where you can see from the judgments that mistakes were made and that families went through misery as a result - Alas Al-Wray and Musa.  But nobody is done any favours when the basic facts are misreported so badly]

 

I’ll borrow from Lucy Reed, on the code of conduct for journalists

 

The National Union of Journalists Code of Conduct says :

A journalist:

  1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.
  2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
  3. Does her/his utmost to correct harmful inaccuracies.
  4. Differentiates between fact and opinion.
  5. Obtains material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means.
  6. Does nothing to intrude into anybody’s private life, grief or distress unless justified by overriding consideration of the public interest.
  7. Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work.
  8. Resists threats or any other inducements to influence, distort or suppress information and takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge.
  9. Produces no material likely to lead to hatred or discrimination on the grounds of a person’s age, gender, race, colour, creed, legal status, disability, marital status, or sexual orientation.
  10. Does not by way of statement, voice or appearance endorse by advertisement any commercial product or service save for the promotion of her/his own work or of the medium by which she/he is employed.
  11. A journalist shall normally seek the consent of an appropriate adult when interviewing or photographing a child for a story about her/his welfare.
  12. Avoids plagiarism. 

 

[I've broken point 12 there...]

 

Perhaps Mr Booker and his editor honestly think that his reporting on the Italian C-section case, to take just one example, really follows the spirit of that code. Perhaps I missed the correction piece that would seem to be desirable under point 3 when the facts of the case emerged.

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