Archive for May, 2011

Sophocles had a point… yet this week we have a number of examples of judicial and political misbehaviour.  The Sun reported “A JUDGE’S career was in tatters tonight – after being found guilty of battering his wife because she was late with his tea. Deputy High court judge, James Allen QC AND his wife a deputy county coroner were also shamed after both were accused of LYING under oath in court to try to get him off.”

District Judge Daphne Wickham decided neither had told the truth and she found Allen guilty of assault.  She was, clearly, not convinced about Mr Allen QC’s defence that his wife had punched herself several times in the face.  James Allen QC will be sentenced at a later date.

Chambers described Mr Allen thus:  James Allen QC is ‘a formidable negotiator of huge intellect’.  On the assumption, not unreasonably given my researches on the Bar Council website for James Allen QC, that this refers to the above, it is a pity he didn’t use his considerable powers of negotiation and huge intellect to make his own ‘tea’?

AND then… there is a lawmaker… Lord Hanningfield… a lawmaker who wasn’t really sure about the laws relating to expenses.  The Independent reports: Expenses peer Lord Hanningfield is found guilty – on day disgraced MP is freed early

A former Tory frontbencher faces jail after being found guilty yesterday on six counts of fiddling his parliamentary expenses. Lord Hanningfield, who had been a Conservative transport spokesman as well as leader of Essex County Council, was convicted for false claims for overnight stays, mileage and train fares.

He had denied dishonestly claiming expenses totalling almost £14,000, but was found guilty by a jury at Chelmsford Crown Court. The vast bulk of the fraudulent claims – £13,379 – were for £174-a-day overnight allowances for London when he was often returning in a chauffeur-driven car provided by the council to his home in Essex.

On one occasion the peer, who was a pig farmer before he embarked on a political career, was actually on a flight to India. He also wrongfully claimed £382 in train fares, as well as £147 in mileage by doubling the seven-mile distance from his house to the station.

Lord Hanningfield, who will be sentenced in three weeks’ time, said as he left court: “I am devastated, but I have no regrets. I did nothing wrong.”

A quick trip to RollonFriday.com reveals some more unusual ‘goings on’…

Exclusive: Slaughter and May in offensive job ad shocker

There were red faces at recruitment firm First Counsel, chosen by Slaughter and May to advertise its vacancies, after it posted a pompous and apparently xenophobic job advertisement.

The advert was aimed at associates to join Slaughters’ competition team, and claimed that “perhaps counter-intuitively, the firm is not as exacting in terms of its requirements as one might expect and will happily consider lawyers from Australia, New Zealand and Brussels”. The generosity! To consider convicts, sheep stealers and mussel munchers!

Graham White, Slaughters’ Executive Partner, told RollOnFriday that the firm was entirely unaware of the advert, did not approve its wording, considered it to be clearly offensive and had demanded it be taken down.

Here’s the ad in all its glory…

And the legal profession…just keeps giving! : “Exclusive: saucy Senior Partner scandal hits top City firm” – “RollOnFriday can reveal that a Senior Partner of a top City firm has been rumbled by his own staff after engaging in an extra-marital romp with another partner at a firm event. The antics – allegedly spotted by numerous fellow lawyers and even bragged about by the Senior Partner himself – took place at a UK resort. RollOnFriday’s sources at the firm said that, following a dinner, the philandering partner “hook[ed] up with a younger, buxom [partner]” , and “went to her room on the first night” before spending more time together the next day…..


But if you have time and the inclination for something sensible  and for  a spirited discussion on privacy, superinjunctions, the antics of another lawmaker – Mr John Hemming MP – and want to find out what GCs do… then may I recommend the #WithoutPrejudice 6 podcast which I thoroughly enjoyed doing with our guest, Tim Bratton, GC of The Financial Times and regulars David Allen Green  and Carl Gardner.  Hit the link above or scroll down.

I’ll leave it there for the moment…. I may have some more nonsense for you in my ‘Postcard from The Staterooms’ later today… or tomorrow…


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Listen to the podcast

Tim Bratton blogs in a personal capacity – and his latest post: One for the students: so, you want to work at Big Law? is a good one for law students, particularly.

David Allen Green, solicitor,  is the author of the Jack of Kent blog and is the legal correspondent  at The New Statesman.  Carl Gardner is an ex-government lawyer and is the author of the Head of Legal blog


I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law School David Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone and Cellmark for sponsoring the podcast  – and the free student materials on Insite Law – appreciated.

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The press is running riot with stories about Schillings and their ‘reputation management’ skills after the injunction fiasco and the cunning plan to ‘sue twitter’.

The Guardian….

Injunction publicity backfires on celebrity law firm

“After Ryan Giggs’ lawyers tried to sue Twitter for the initial internet leaks, thousands more tweets followed in retaliation”

Predictably… The Daily Mail put the boot in rather more brutally…

The Injunction King, a cabal of grasping lawyers and a £2000 assault on free speech.

I’ll leave you the pleasure of reading this latter piece of journalism.  Quite remarkable.  The usual tin foil hat wearers appear to ridicule law firms, law, lawyers and anything else that they fancy commenting on from their bunkers.   This was not a victory for free speech.  Serious matters, hidden from public gaze by injunctions – Trafigura et al – deserve public scrutiny (and MPs raising the matter in Parliament if injuncted).  Footballers and their dongles?

As the injunction has not been lifted, and I am a fan of the rule of law, I shall join other lawyers in not naming the footballer who everyone now knows through twitter and the antics of  Mr Hemming MP in Parliament the other day.   I have added a ‘black mask’ to the pic circulating widely on the net.

I don’t know much about Schillings, or Mr Schilling.  I admire the way he is reported as having worked his way up from a very modest background to run and head a successful law firm.  Lawyers do what lawyers do.  His reputation as ‘The Silencer’ will not appeal to many – but it clearly did to those who sought privacy.  I am a pragmatist when it comes to the business of law.  If there is a law, lawyers are going to use their skills to evade it or enforce it for the benefit of clients.  Criminal lawyers are used to public opprobium when they defend rapists, killers, paedophiles and other undesirables.  It goes with the territory – but everyone is entitled to be defended in criminal matters and, it must be the case and right, in civil matters as well. If we don’t like a law – we have a long standing tradition of law making in Parliament and we can lobby to change the law.   While Mr Schilling may well be reflecting on the PR disaster that is “CTB” – I doubt very much whether it will trouble him or his firm for long.  Win some, Lose some?  – But always get the fee?.  Nor should it.   Not all law is cuddly and fluffy – and neither are the clients who instruct the law firms.   The Bar has the long tradition of the cab rank principle – where all, no matter how unsavoury, are entitled to good legal representation.   Solicitors can be more choosy about their work and their clients. I have no problem at all with law firms representing those who want particular laws enforced.  We have courts to decide on the interpretation and application of the law – and an appeals mechanism if the first instance decisions are plainly wrong (as they are, inevitably, from time to time). Perhaps, in some cases, clients claim their rights now at their own peril.  Caveat Twitter? 

I add this from…

@Charonqc Can I just politely point out that it was Gideon Benaim (partner at Schillings) on for CTB, NOT Keith http://bit.ly/iEb0eL

There are, of course, many good media law firms out there opposing injunctions and ‘injunctioneers’ and act for the other side.  I suspect they may be laughing.  I know that Dr Erasmus Strangelove of Muttley Dastardly, allowed a flicker of a smile to cross his lips as he devoured the Daily Mail story.

AND talking about Twitter…I marvelled as I read some world class nonsense from a PR in The Guardian – twitter is running riot with this story…rightly.  I read the story in Comment is Free in The Guardian and mused…. had Mr Hillgrove got a tin foil hat on under his hat?

Twitter cannot be allowed to operate outside the law

The Guardian: “The Ryan Giggs case shows social media sites need to grow up and ensure content adheres to the same rules as everyone else.”

Astonishingly, Mr Hillgrove runs a PR company – who’d have thought that he doesn’t have an agenda?   Clearly, The Guardian may not have realised they were publishing a PR piece?  Who knows?  The Guardian is very busy these days…… very.  (Hat Tip to @ashleyconnick for drawing my attention to this website – Mr Hilgrove’s PR business.)

Anyway.. back to the man who may have a tin foil hat under his hat.  I quote from his own piece in The Guardian….

“Clearly, they  (twitter)are going to have to introduce a delay mechanism so that content can be checked before it goes up. There will have to be a completely different structure, which will be difficult when the whole thing about Twitter is its spontaneity.”

Wonderful nonsense…. how will that work?  Human being, algorithm?  I think Mr Hillgrove needs to go back to his bunker and put this idea back in the oven.

AND Finally.. this wonderful piece from @loveandgarbage... who is ruining his excellent reputation for blogging about scones and snow by doing a lot of serious and good law blogging…!

Are you a celebrity? Have you a secret? Consider your choice of lawyer carefully.

Well… there we are.. another day… another legal marvel….

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“Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.”

Mr Justice Eady

Well…..after 75,000 unpaid ‘reportertweeters’ for The Sun et al.. managed to effectively break an injunction on Twitter and, thereby, commit technical contempts of court, John Hemming MP took what he clearly believes to be a principled stand, by naming the footballer.

This battle between the Press, Parliament and the judiciary will now move, inevitably, to a close focus with Parliament setting up a new committee.  Eady J was right.  If a law is unpopular or unenforceable, it is up to Parliament to act – for without the rule of law, we may as well have mob rule on twitter.  I return to an old theme….. 50 million flies enjoy eating shit and believe it to be right to do so.  As it happens, I am not that keen on shit…. so, hopefully, Parliament will now act to clarify (a) the balance between privacy and freedom of speech through ‘guidelines’ or (b) draft a clear law of privacy (c) examine whether injunctions of any sort are an appropriate remedy and (d) re-establish credibility and acceptability in this field (and the separate field of libel) for the law.

A few articles for you to read… if you are not ‘superinjuncted / injuncted out’:

LoveandGarbage: What should CTB have done to protect his position in Scotland?

Lallands Peat Worrier: “If such be the law of England…” #superinjunction

UK Human Rights blog: MP has “revealed” footballer’s name, but is it safe to repeat it?

David Allen Green: The weekend Twitter mocked the English Courts

Carl Gardner at Head of Legal: Hemming does his worst


I gather that Mr Justice Eady did not reconvene the court.  I asked on twitter.. the font of all wisdom… and was told that Mr Justice Eady was on a train.  I can’t say I blame him!

Meanwhile…NOT KEENLY reported in The Sun (or any other Murdoch meedja outlets as yet?)….. this great news…

Phonehacking: Prescott stuns Westminster by winning judicial review

Politics.co.uk: John Prescott stunned the political world today by winning a judicial review into the police investigation into phone hacking.

The decision means that the Met’s handling of the investigation will now come firmly under the spotlight.

Lord Prescott, Labour MP Chris Bryant, former deputy assistant commissioner Brian Paddick and journalist Brendan Montague argued that the Met had failed to properly brief them on the evidence in their possession concerning what had happened to their phones.

A high court judge said they had “an arguable case for seeking the relief claimed by way of judicial review”.

Perhaps this issue will be more difficult for The News of The World and sister meedja outlets to ignore and sweep under the table.  Superinjunction anyone?


The death of blogging? Not for #lawblogs

Siobhain Butterworth in The Guardian:  A recent panel event shows legal blogging is growing to fill the gap left by newspapers…

Good article and great to see coverage for law bloggers in a leading newspaper.  I thought my mention in the blogroll was ‘very accurate reporting’ as to rioja quaffing / chain smoking…. at any event.

AND… I JUST HAVE TO… let you see this excellent blog post from John Bolch….. *Be Careful*… It contains Hemmings


I shall end the day with this tweet…… it has been.. truly astonishing… and lawyers (and, hopefully, many others) know why?

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Dear Reader,

While the publication of Lord Neuberger’s report gave us an insight into current judicial thinking on the use of injunctions and ‘superinjunctions’ – and prompted this (lawful) tweet…. from @DavidJonesMP : “Unimpressed by sight of Ld Chief Justice & Master of Rolls sitting under banner “Judiciary of England & Wales”. Bit like Match of the Day.” – and inspired Lord Judge, the Lord Chief Justice, to say that the use of modern technology was out of control – and it is certainly, for the moment, out of his control as far as overseas jurisdictions are concerned… the show on twitter goes on….

The latest twist in the tale from lawyers representing the footballer we cannot name in England & Wales  (but who appears now to be known urbi et orbi despite the best endeavours of judges ruling contra mundum etc ) is.. CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814) – well covered by the Charles Russell CRITique blog. See also: Footballer CTB is suing Twitter

I am, because I read a lot of tweets, aware of another twist in the tale… this time from Scotland. But… I can’t tell you what it is about. (Although the BBC is happy that you should know about these events)

And you will find this post by @loveandgarbage of value in terms of protecting a position in Scotland? : Don’t say I didn’t tell you so – superinjunctions, anonymised injunctions and Scotland

Twitter and WikiLeaks have made a mockery of the courts

One of the best analyses I have seen was in The Observer this morning “A showdown between the law and common sense is brewing as a footballer takes legal action over Twitter’s injunction breach”

Most people know – or should by now – that in the absence of any ‘privacy law’,  the judges have to balance the rights of privacy and freedom of speech in The European Convention, enshrined in our law by The Human Rights Act.

Some may well argue that the private sex lives of footballers and others is ‘private’.  Others argue that these celebrities make a great deal of money through sponsorship, they are role models and if their hobbies or extra-curricular activities are inconsistent with the image they ‘sell’, the press should report on such matters.  Others have argued that it should not just be left to the judges to balance these interests of privacy and freedom of speech.  A debate in parliament, they say, is to be held soon – not before time.  I have a feeling that whether you mock the ‘apparent right of tweeters to know everything’ or not, that injunctions may well not feature as a practical remedy in future.  The cat is out of the bag – and The Spycatcher affair of many years ago is a lesson that would be well worth learning.

Meanwhile… contempt proceedings may be considered by the Attorney-General if this report in The Mail on Sunday is accurateone assumes that it is.  Robert Verkaik writes: “TV star is first to face jail over tweets after England footballer claims they breach injunction: Judge reports top journalist to Attorney-General.”

The other saga of the week… among many… must be The Ken Clarke Affair.  I don’t propose to cover this again, but I would like to draw your attention to a very good, considered, piece by Suzanne Moore in The Guardian…

Like many women, I’ve been raped, but I still agree with Ken Clarke

Rape is not a party-political issue and I am disgusted that it has been treated that way this week

I’ll be back later with another ‘postcard’ if I have time later.

Best, as always


PS…. and I really enjoyed this…. Lord Neuberger – Superinjunctions and other orders from Obiter J 

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After a surreal week of dentals, serious meds and a birthday – and reeling from the Court of Twitter on Ken Clarke – I read with mounting astonishment some world class nonsense in The Telegraph which restored a degree of sanity to my fevered brow…

David Cameron’s uncle says voters want to be led by an aristocrat

The Telegraph: “David Cameron’s uncle Sir William Dugdale says the working classes prefer to be led by an aristocrat and the Prime Minister should not be ashamed of his background. While David Cameron has often gone to embarrassing lengths to show that he is prolier-than-thou, his uncle Sir William Dugdale has no such inhibitions…….”

Sir William Dugdale is reported as saying…

“You can’t just turn up to things in an open-necked shirt,” he says. “So many of the clubs in Oxford required you to wear white tie. You have to have a bath before you go to things and not just turn up in your bovver boots.”

If you thought that *British* lawyers could get up to weird things… this astonishing saga of a US lawyer suing some 74 leading US lawyer law bloggers (and one Canadian blogger) is incredible…

Here… Antonin Pribetic of The Trial Warrior blog,  takes up the latest episode of the saga…

This… is WORTH… a read… I shall return… later……

This comment is well worth extracting to the main  body of the post…

Colin Samuels

A minor clarification of a couple of points regarding the “Rakofskylypse”:

While the initial complaint named 74 defendants, these are not all legal bloggers. The “Rakofsky 74″ included two newspapers, together with their parent companies and three reporters, the American Bar Association and its website, and (I believe) at least a couple of folks who were commenters on others’ posts.

The original Rakofsky 74 are now joined, in a no-less-frivolous amended complaint, by another half-dozen-plus defendants, making for a grand total somewhere north of 80 (I’m too lazy to count it up right now).

In the interests of full disclosure, I should note that I am one of these latter defendants. My employer is as well, though it’s plain to anyone visiting my site that they have no connection with my personal blogging (in 6+ years, I’ve only generally alluded to my position and have never mentioned my company by name). Rakofsky and his lawyer have drafted quite the scattershot complaint.

It’s great to see some interest from our legal brethren across the pond. I hope you’ll all stay tuned to enjoy the show as we return fire against this crapweasel in the very near future.

AND finally… all I have to say on the tweets on Twitter tonight about someone suing Twitter for something…

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Britain is right to honour this champion of the rule of law

Lawyers and non-lawyers who find law interesting  will need no introduction to Lord Bingham.

[Pic credit: The Guardian]

Peter Oborne, writing in The Telegraph, has a fine piece on Lord Bingham’s considerable influence in our society through his work as Lord Chief Justice and law lord and argues well the point that had it not been for the judiciary under Labour over the last thirteen years (and now under the Coalition) the political elite may have gone – and may now go – far further in eroding our liberties to suit the convenience of their rule by law.

I quote from Peter Oborne’s article: “The emergence of this new elite has done terrible damage to the reputation of Britain as a decent, law-abiding and tolerant country. This damage would have been far greater but for the integrity and independence of the British judiciary. That is why, from a decade marked by its greedy bankers, venal politicians, compromised spymasters and failed generals, Lord Bingham will be remembered as the most admirable and virtuous figure of his time.”

Today, Lord Neuberger MR published his report into Injunctions – the latest act in a play being played out between the competing interests of reasonable privacy and the commercial needs of some sections of the mainstream media.    It is an interesting report and I spent much of the latter part of the morning reading through the 112 pages carefully.

Lord Judge, Lord Chief Justice, welcoming the report said:

“No one, and in particular no judge, doubts that the open administration of justice is a long-standing, treasured principle of our legal system.

“Before 2000 there was in England and Wales no general right to privacy and therefore no right to an injunction to protect or enforce any general claim to privacy. The development of privacy rights since 2000 was an inevitable consequence of the enactment of the Human Rights Act 1998 and the incorporation of the European Court Convention of Human Rights, and in particular article 8 of the Convention, into domestic law. That consequence was indeed clearly explained to Parliament before the Human Rights Act was enacted.”

“Contrary to some commentary unelected judges in this country did not create privacy rights. They were created by Parliament.Now that they have been created judges in this country cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by Parliament, including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights underlined in Article 10 and the principle of freedom of expression. The relationship between Parliament and the courts has, for generations, been predicated on mutual understanding and respect.Judges have never asserted, and they are not now asserting, any authority or jurisdiction over Parliamentary proceedings or debate, which are exclusively matters for Parliament.”

Adam Wagner of the UK Human Rights blog was probably first out of the starting blocks with his analysis: Turns out there weren’t that many super-injunctions after all.

David Allen Green, solicitor, and author of The Jack of Kent blog,  tweeted soon after with his observation that Paragraph 6.33 was significant.

I extract 6.33 for your convenience.  The preceding paragraphs of the report make fascinating reading.

It therefore appears to be an open question whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right.

And @Loveandgarbage brings an element of very real realpolitik to the media frenzied discussion by noting, in the *Fred “The Shred/Bed injunction saga* that yesterday’s use of parliamentary privilege in the House of Lords  by Lord Soneham on behalf of his Liberal Democrat colleague, Lord Oakeshott was….

“…. no great triumph for Parliamentarians over the courts in a battle over the meaning of public interest. The battle over the meaning of public interest was not waged in the court.”

The Ken Clarke saga was well rehearsed / butchered on the Court of Twitter – and, less forgiveably so, by Mr Miliband at PMQs yesterday when he called for Ken Clarke’s head.  Salome Miliband may well come to regret his eagerness.  There is no doubt that Ken Clarke should have been more careful in his use of language on this highly sensitive issue – but he has apologised (an apology which may not be accepted by all) and he wasn’t wildly off-beam in terms of the highly complex use of ‘discounts’ for pleading guilty nor in his reasoning for their use in ensuring that justice is done.

Many have written on the topic – but this piece by Neil Monnery gives a very good parodic analysis of the very real dangers of kneejerkitis and the *Court of Social Meedja*…

Ken Clarke – a trial by modern social media

Barrister, Felicity Gerry… brings some good analysis to the issue… writing in Legal Week: Understanding rape sentencing: Ken Clarke and the ‘guilty plea’ debate

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Social Care Reform – Essential Change is needed to Protect Service Users
BY Eddie Jones, Head of Clinical Negligence, JMW
I receive many enquiries from clients who are concerned with the social care they or a family member receive. Many of these enquiries fail to fulfil the criteria of medical negligence as there is an absence of an injury sustained, but they do highlight how distressing it must be for service users and their families and carers when the support required is denied or withdrawn.
The proposed changes to social care law as set out by the Law Commission this week, should be welcomed. In the future it should be clearer to service users, carers and solicitors what social care provision people are entitled to, untangling the ‘mess’ current ad-hoc legislation creates.

Currently, the service user’s spouse or family is often left to bear the burden of care or to provide private care which is extremely expensive.

The Law Commission is trying to do something about it
The Law Commission published ‘Adult Social Care’ on 11 May which has revealed major inefficiencies in the current system.
The current system, developed over the last 60 years from the National Assistance Act 1948, contains outdated references to “dumb and crippled persons” who were to be cared for on a ‘welfare state’ basis. The modern practice of independent living and individual choice has left this system defunct.
The Law Commission has made recommendations for a ‘single, clear, modern statute and code of practice that would pave the way for a coherent social care system’. The laws would help to protect individuals by stipulating “clear and individually enforceable rights” relating to eligibility and provision of services that could be taken through the courts if violated.

Let’s hope the recommendations are taken up
The reforms are based on the assumption that the service user is the best judge of their own well-being and whilst this principle already underpins social care practice making this law would allow for a firmer legal footing for individuals to dispute the standard of care they receive.

The reforms would also help to protect ‘at risk’ adults as councils will now have a legal duty to investigate suspected instances of adult abuse when an adult is at ‘risk of harm’ and NHS trusts and police will be required to appoint representatives to adult safeguarding boards.
All in all the reforms set out in this proposal seem to help protect service users from abuse and neglect by providing a clear legal framework. And that (ignoring the slight potential hurdles of time, resources, implementing change etc!) can only be a good thing! I hope the government responds positively to the recommendations and recognises that these changes are clearly overdue.
The challenge ahead
The next challenge these proposed changes will face is the issue of funding.  How does the government pay for improved social care, especially if a revised model of care may prove to be more expensive in this age of austerity?
The Commission on Funding of Care and Support, an independent body responsible for the review of the funding system for care and support in England, has been looking at a range of solutions and is due to release its recommendations in July 2011.
Care doesn’t come cheap but in my eyes it is one of the cornerstones to a developed society and one where cuts could severely reduce citizen’s quality of life.
You just can’t cut corners when it comes to care and wellbeing.

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For some years now I have kept to the principle that I do not work on the anniversary of my arrival on Earth.  As blogging, for me, is not work… I am able to blog.

The UK Supreme Court proceedings are now being broadcast on Sky.   Although the first transmission involved a complex matter of Revenue law, I watched for about an hour yesterday morning and thoroughly enjoyed it.  This, apart from being a wonderful tool for teaching, is a very welcome development and I have no doubt that some of the more important cases on human rights, the constitution, civil liberties, and other matters of wide and general public interest will attract a wide viewership.  Worth a look

In an excellent piece of blogging @lawandgarbage considers the issue of superinjunctions…

Imogen no possessions I wonder if you can No need for greed…

In recent weeks a former reality television contestant, Imogen Thomas, has done the rounds of television studios and newspapers bemoaning the fact that she had been gagged by the courts from selling her story.

One of her tear-filled television appearances can be viewed here……


David Allen Green puts the boot into Wikileaks with an excellent analysis of what Wikileaks should have done to gag their employees: WikiLeaks £12m Legal Gag: a legal analysis

And.. if you need more on this… The Big Brother star, the footballer, privacy law and the judiciary from Legal Week

Many law bloggers have commented on the privacy and superinjunction issue.  I did so with a number of propositions the other day.  The Guardian reports: Privacy law could help judges decide over gagging orders, says Ken Clarke noting…“Justice secretary says he will consider legislation, but admits there may be quicker, less controversial ways of tackling issue.”

Proposals for a reformed House of Lords published

For my part, I tend to agree with much in The Times editorial today that reform of the House of Lords – an ongoing saga since 1911 – should not be a high priority of government time at a time when the economy and cuts are far more deserving of the focus of our MPs and government. The recent AV fiasco should be a pointer to the lack of public interest in constitutional reform at this time – and even, generally?  However, I share Carl Gardner’s  astonishment, declared on twitter earlier today,  that the reform proposals published today in readiness, hopefully, of being kicked into the long grass, contain a provision for 12 of 26 ‘unelected’ bishops to remain in the Lords.  Why?   Religion is a matter of personal choice – and there are many gods out there for people to believe in.  But should any religion, in the 21st century, be part of the governance of our country? Obviously, I think not.

I remember enjoying the biting satire The Ruling Class with Peter O’Toole many years ago.  Plus ca change?

Breaking the myth of the barristers’ dinner

A few days ago Alex Aldridge wrote an article on the dining ritual: Barristers’ dinners – a bit of fun or one upper-class indulgence too many?

I read the article in The Guardian  with some amusement – wondering how long it would be before the backlash came… and come it did.

Fiona Fulton is the head of education and training at the Honourable Society of the Inner Temple.  She had much to say…rightly.  I’ll quote from her summation:

“Instead of perpetuating a simplistic stereotype, we want to break down myths and make sure that prospective barristers receive accurate information about the inns and the profession.

We wish the same could have been said for the earlier article.

The Inns of court are many things but “Disneyland” for the privileged they are not.”

Ouch.  Worth reading.

Legal Walk raises £500,000 for advice centres

The Law Society Gazette reports:  Legal workers came out in force across the country yesterday for this year’s Legal Walk. More than 5,000 people joined in the event on Monday evening to raise £500,000 for free legal advice centres in London. The Gazette acted as media partner.

Good stuff….

Right.. back to my Rioja….

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The philosophical foundation and gold standard for  any modern progressive and democratic society in the 21st Century, it can be argued reasonably, involves a trinity of respect for (1) Human rights,  (2) A free Press and freedom of speech and (3) The Rule of Law.

Ironically, it is this very trinity which has led to one of the more complex legalo-philosophic ‘hard cases’ of recent times. For the Rule of Law to be respected, consensus and consent is required.  A poor law which is disregarded or unenforceable is, as many have observed, merely words on paper and serves to undermine respect for law – law being, arguably, the basis upon which we can all live our lives without fear of oppression from State or others.

If you accept what is a very basic formulation above as a proposition for debate: The complex rights of privacy of the individual and freedom of speech (which includes the free Press) immediately come into the scope of The Rule of Law and getting it wrong will, ultimately, lead to a lack of  consensus and undermine respect for The Rule of Law.

Some years ago, we did not not have a particularly effective privacy law. The European Convention created two rights:  The Right to Privacy (Article 8) (Eight) and The Right of Freedom of Speech (Article 10)  Both of these rights are enshrined in our law by virtue of The Human Rights Act.   The judges have to balance these two interests.  Government has been reluctant, for whatever reason, to put privacy law on a statutory footing.  It is, therefore, unreasonable to criticise the judges for doing what they are required by law to do – balance the issues of privacy and freedom of expression under, to keep it simple for the purposes of this piece, the public interest test.  It is not, of course, unreasonable to criticise judges for doing this task badly.  There is an appeals procedure to correct poor application of the law by the judges.

By gleefully revealing the identity of those who seek injunctions (or superinjunctions) on twitter and other social media (which they do by ReTweeting?);  people in England & Wales are, in effect, saying they have no respect for The Rule of Law of our nation.  I understand why they do it.  There are many reasons – mischief making, tin foil hat thinking, genuine concern for the rights of freedom of speech, irritation that these injunctions are, apparently, only available to the very rich (men, it would seem, in the main) and other subtle variations on these themes – possibly including nihilism and poorly thought out anarchy.

I know that it is old fashioned – but we do have a (flawed) mechanism for voicing dissent: Protest – campaigning, lobbying Parliament and, ultimately, rejecting a government at the ballot box.

Hugh Tomlinson QC and others have written serious analyses of the issue.  Hugh Tomlinson  QC has an excellent and very readable analysis in The Guardian.

How to create a privacy law

The Guardian: If we want a law of privacy, what should happen next? There are four possibilities

Again, being old fashioned, I don’t subscribe to  “The might of tweeters is right” or ‘The 50 million flies eat shit so it must be good”  doctrines – but if Parliament doesn’t have the courage to address this very complex – and very important – balancing of rights,  the judges will continue to do it, because that is the law of our country as it stands,  and judges apply the laws of our country.

Why don’t I subscribe to the “Might of tweeters is right and 50 million flies doctrines?  I give you a very simple, but deliberately extreme, example:  What if the majority of tweeters thought it was a great idea to bring in “an eye for an eye law” and pour acid into the eyes of a criminal to punish him for his crime?”

I prefer, as do most/many, the imperfections of our Rule of Law.  It is, however, not up to the judges to make sure The Rule of Law is good (they merely apply the law and fill in the gaps where there is no law) – that is up to us, through our Parliament.

I make no pretence that this is anything other than a short foreward to a very complex issue to put some of the key points for debate.

AND.. I just could not resist this tweet from the online editor at The Times…. I must credit him for pointing it out!

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Guten Abend meine Damen und  Herren.. und… even…  Juristen… . aber die Zeit  ist Geld … so I will keep this brief.

It is with regret that I cannot join the distinguished panel of pundits, mavens, prognosticators und blawgers at ze #UKLAWBLOGS Convention at The Law Society on 19th May 2011.  I am Dr Erasmus Strangelove (no relation), as some of you know, Director of Psyops, Strategy and Education at niche boutique firm Muttley Dastardly LLP in The City.  Our motto is ‘Strength & Profits’.  Each day I have to make complex and even minor calculations as to how I allocate the 20 hours of billable time – available daily  to the modern day professional lawyer –  to the future of The Partners…. of which I am one.  More often than not this consists of monitoring a bank of television screens in my Psyops room in the basement,  where we are able to monitor (and direct) the productivity of our various departments or…as we call them at Muttley Dastardly LLP… ‘revenue generation units’.  We like a neo-post-modern joke at our firm… or, at least, The Partners do.

I came to ze conclusion that while blawging und flawging is a most worthy and profitable activity for other lawyers to engage in… the more so if these same people can be encouraged to waste industrial amounts of time on twitter und Linked-In – the profit comes from taking advantage of the lack of productivity from our competitors and not in engaging in these activities ourselves. This explains why I am allocating time to a specially televised broadcast, delivered to you by courier using a USB device to connect with a PC at an internet cafe ‘somewhere in Abbottabad”, rather than expend Zeit  ist Geld by attending in persona.

It distressed me to hear this morning  that ‘persons unknown’ sought to obtain an injunction from Mr Justice Spank-Farquhar ,  a superinjunction contra mundum and against twitter and Facebook,  to restrain publication of my address to you urbi et orbi.  Fortunately, our recently knighted managing partner, Sir Matt Muttley, was able to use his considerable expertise to brief counsel to turn over this injunction on  the sole ground that all matters, save those which The Partners of Muttley Dastardly LLP do not wish to be made public, are in the public interest.

Spank-Farquhar J said “I have known Sir Matt Muttley for many years.  We were in The Bullingdon together and what happened at that club in London we trashed all those years ago, stays at that club we trashed in London all those years ago. When Sir Matt Muttley tells me now, through counsel, that he believes something should be made public, I can only reach one conclusion: It is in his interest, and therefore in the interest of the public and the ‘public interest’,  for it to be made public. I therefore order contra mundum spiritus et fillii et Spiritus Sancti exorciso te Romanum that this notice be published everywhere – with a bit of added SupraMandamus just to chill the breast of the tardy.  Make it so Mr  Sulu and let these words boldly go.”

I am much encouraged that a renegade blawger in Kent has addressed the real issue of law blogging.  I refer to Mr John Bolch of Family Lore and his brief, but nevertheless precise and excellent, treatise on the subject:

Has blawging become ‘establishment’?

Lord Bolchdidit goes to the very foundation of the rot which may pervade, pervert and pollute blogging – and which we may sleep walk into – if we are not very careful.  I quote:

“When I began writing this blog, there weren’t that many other legal blogs around. Law blogging was still a relatively new phenomenon, not taken seriously by the legal establishment. OK, there were certainly some serious legal blogs about (IPKat comes to mind), but there was definitely a higher proportion of more personal law blogs, with their own unique styles, such as Charon QC and the much-missed Geeklawyer.

Gradually, however, the establishment began to realise the potential of blogging to promote businesses and further careers. More and more blawgs began to appear, from the tedious “here’s a topical legal story – if you have the same problem, we can help” type, to the rather more subtle providers of detailed legal analysis, thereby demonstrating serious expertise.

Don’t get me wrong, though. I’m not saying that law blogs should be restricted to one type. One of the beauties of blogging is that there are (virtually) no rules as to what format a blog should take. The problem, however, is that the establishment thinks it knows best and inevitably tries to take over the medium. Before we know where we are, we have blawging mavens making their pronouncements to the minions from on high, telling us all the right and the wrong ways to do things.

Worse than that, the establishment likes order. Blawgs have to be listed and rated. Now, I have nothing against personal opinions, but if the rating is by committee or vote, then you can count me out. You can also count me out of any annual award ceremony for the best blawgs by category, even if the winners are announced in reverse order.

I do recommend that you read the rest of it.

I concur.  If I have any advice at all for law bloggers… it is this.. you have a duty to stir.  My colleague and consultant to Muttley Dastardly LLP, Charon QC,  will be attending #UKLAWBLOGS if he is sober – and he may well appear roaring on arrival in any event.  I suspect he will be putting his “Doctrine of The Duty To Stir’ (Self Aggrandisers Monthly April 2011)  before you for your delectation and delight.  He may listen to reason – and he does a most passable imitation of appearing to do  so and be affable at the same time – but he certainly does not feel it necessary to abide by reason.

That is all.  May the law have mercy upon your soul and keep you safe from flawgers and establishment blawgers. Read their marketing schtik instead.

Dr Erasmus Strangelove

Strength & Profits

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Bonsoir … Bienvenue aux  The Staterooms .. Je suis  Chef Charon …. avec des étoiles (dix-huit) à mon nom … histoire vraie …

Tonight, after eating boeuf bourguignon to death about a year ago ( I do eat things to death and cannot face them for months after), I shall be dining in splendid isolation, wearing a Panama hat,  at my dining room table eating Boeuf Buggerorf a la Charon.   

For those of  you who would like to eat Boeuf Buggerorf a la Charonhere is a recipe wot I knocked up….

Chef Charon présente Boeuf Bourguignon

I always enjoy writing the Rive Gauche posts on Fridays / Saturdays… tales of the law from the left field.   Today I have a few oddities and a few interesting sane posts to share with you…

First up – a  remarkable story of a US attorney, an associate, who appears to be suing most of the US law  blogosphere who took him to task for his antics.  I know many of the people in the claim through blogging – they are leading US law bloggers – and I have had the pleasure of podcasting with several of them.  It really is an astonishing story.

How Young Lawyers Should NOT Conduct Themselves Online

Do…please.. take time to read this.  It will bring a smile to your face… of this, I am sure.

Courtesy of Mark Bennett, you can read the complaint for yourself of what is already being referred to as Rakofsky v. The Internet.

RollonFriday.com continues to provide amusing examples of law firm behaviour… this is wonderful nonsense…

Exclusive: Top Scots firm launches “league table” of associates’ hours

Morton Fraser is taking the ground breaking step of abolishing annual fee targets. And getting associates to compete with their colleagues instead…

The Scots firm has come up with a new initiative called “peer benchmarking“. The idea is that a league table is created for each level of fee earner, and the aim of the game is to get to the top of it. Rather like the Scottish Premier football league, with possibly more talent but the same number of pitch-side scuffles…….

Read more…

On a rather more sensible note… Wikileaks – The Musical is playing to thousands and may run and run…

David Allen Green, writing in the New Statesman has an excellent SCOOP!

The £12m question: how WikiLeaks gags its own staff

The follow up to this in The Guardian is also worth reading.. from the guy who would not be gagged:  WikiLeaks, get out of the gagging game

I refused to sign Julian Assange’s confidentiality agreement because it would have been not just ironic, but dangerous

James Ball

And not to be outdone.. Alex Novarese, editor of Legal Week, appears to be revising the libel laws of England & Wales single handed with two excellent articles – neither of which are behind a paywall: Libel reform – a hack’s proposal.  I loved the title of the post with the picture of Alan Rusbridger, editor of The Guardian, beside it.  Class!

And also this detailed piece: The death of libel – is the Defamation Bill the beginning of the end for libel lawyers?

Always a pleasure to see new law blogs arriving: Carrefax | a few more legal transmissions to add to the pile and this new Family Law blog – Confessions of a Family Lawyer

AND.. I do like this: Clerkingwell – Observations from a barristers’ clerk. 

While I read the Supreme Court judgment, I got kidnapped by a bottle of Rioja and was forced to watch The Apprentice earlier in the week.  Thankfully Obiter J has done the business with a very good analysis on…

Supreme Court – Compensation for miscarriage of justice cases

I did enjoy this piece on the Magic Circle from Ashley Connick: The Magic Circle Myth? How some applicants miscategorise firms they’re applying to

AND.. this prompted me to cruise ( I don’t surf.. I cruise…) over to Anonymous Assistant: Feudal Bonds

and thence to Magic Circle Minx: What Can Lord Sugar’s Tomato Task Teach Lawyers?

The new Babybarista book is out!.

Tim Kevan is a good friend of mine.  I enjoy reading his regular posts in The Guardian, repeated on his blog.  I enjoyed the first book…and I am thoroughly enjoying the second.   I shall write a review shortly… but I can tell you, three quarters of the way through,  that Babybarista is deliciously venal.  Dr Erasmus Strangelove, director of Psyops, Strategy and Education at Muttley Dastardly LLP is keeping a very close watch….. in fact… it would not surprise me if he is hacking into Babybarista’s mobile as I write.

Available, as they say… at all good bookshops.. but why not buy it from a really good bookshop? Wildy’s – they deliver and are very efficient!  I know this from many personal experiences.

And, of course, no week would be complete without a bit of Max Mosley.  Carl Gardner, author of The Head of Legal blog, has covered the case in detail.  Mosley v UK : “Max Mosley has lost his case in the European Court of Human Rights, in which he claimed that the UK breached his right to respect for private life under article 8 of the ECHR by failing to impose a legal duty on the media to notify him in advance of a story that violated his privacy….”

I did enjoy the bit on BBC  Question Time last night when Max Mosley had finished speaking and Dimbleby said, without a flicker of a smile… “And now we go over to the man in the black shirt”.  Irony is not dead.

Non-lawyers may be baffled to discover that it is a requirement of The Bar that all barristers have to eat 12 dinners before they are allowed to practise law.  Some lawyers find it equally baffling.  (Picture source)

Alex Aldridge has the story behind this in The Guardian:  Barristers’ dinners – a bit of fun or one upper-class indulgence too many?

BUT This.. from Carrefax.. corrects a few (mis)conceptions… all good stuff…

Dinner at the Inns and rebellious bladders

“There are enough misery merchants pedalling doom and gloom about the Bar. Those thinking about entering the profession deserve an accurate and fair picture of it. That includes coverage of the Inns of Court. On this occasion, Alex’s article doesn’t meet that standard.”

Good article…. well worth a read.  Essential if you are think about a career at the Bar
Well.. there we are.. time waits for no man..and certainly not an Eighteen star chef… I have my Boeuf Buggerorf a la Charon  to perfect and  ‘plate’ and then…  I shall dine wearing a Panama hat…. watching the sun set over Chelsea… and there may be a few ducks I can wave at.  I shall be drinking burgundy.

Have a good weekend…

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Lawcast 184: Jon-Paul McTavy founder of Solicitalawyer.co.uk

In a slight departure from my podcasts on the legal profession, where I interview lawyers,  I thought that it would be interesting to talk to the founder of an online directory for lawyers.  Marketing, a presence on Google and a good website are basic requirements for all law firms. While the large City, leading commercial and regional full service law firms have budget for traditional marketing – the smaller firms and sole practitioners may not.

I asked Jon-Paul McTavy, founder of Solicitalawyer.co.uk to describe his directory:

Solicit A Lawyer is a large database of UK based lawyers and solicitors.  The site which started life as a standard database has been heavily modified to ensure I only offer the most up to date information on law firms.  Company owners can add, edit and delete information and are encouraged to do so.  When adding a new listing law firms can choose from a paid ‘premium’ listing or a free listing.  The paid listing is £10 for the year and will give the company profile more advertising on the website along with use of a e-mail contact form and a clickable link to their own website.  Updating the information is a free process as it’s important to ensure correct and accurate information.  Many law firms take advantage and update their information to add in details on which areas of law they cover along with any additional information which they believe will benefit people visiting the site.   The site breaks down the UK into Cities and Towns to try and make it easier for users to find a local Lawyer / Solicitor.  Our top city is of  London which now lists over 1800 firms and is regularly updated by new listings or updated listings but we also cover the much smaller areas to ensure users will find their local law firm.  The long term goal for www.solicitalawyer.co.uk is to have all UK Law firms listed with up to date information.”

Listen to the podcast


And…thank you to Cassons For CounselJustgodirect.co.uk and  David Phillips & Partners Solicitors , Contact Law UK Solicitors

for sponsoring the podcast and the free student materials on Insite Law

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“Ultimately, lawyering is becoming more of a business than a profession. Some lawyers decry this. Others welcome it. Few deny it. Because the American market cannot grow as it used to, firms will have to find new strategies and make use of sophisticated branding to stand out.”

The Economist

If we start from the first proposition, not unreasonably, that there is no such thing as a legal profession – there are many legal professions – then the needs of top level City law firms, which are remarkably specialist in their work, are very different from the needs of a high street general practice.  There are many shades of legal practice between these two legal sectors.

A second proposition is that all law firms need to be run professionally along the lines of any business service provider.  This does not, of course, mean that all lawyers need to be highly trained in business. I am not sure why law firms appear, over the years, to have come to the conclusion that their businesses are unique and can only be run by lawyers.  This had been analysed by many, including the leading UK doyens: Professor Richard Susskind and Professor Stephen Mayson. It  is also apparent that some law firms are running their practices through management committees or boards, with the managing partner focusing on the business needs of the practice.  Other law firms are bringing in highly trained and experienced CEOs from the business world.  Chambers, also, I am advised, tend to leave the business side to clerks, practice managers and are even bringing in practice directors from the business world – leaving the majority of barristers to get on with the work of being lawyers.

The third proposition is that it is important for all lawyers to have a practical understanding of the ‘business’ of the client.  This applies whether it be a corporate or a client undergoing the stress of divorce, personal injury claims and even crime.  The understanding of the client needs can and should be part of vocational legal education.  It does not, of course, mean that a lawyer needs to be a criminal in order to advise criminals, or a corporate lawyer to have the experience of being an entrepreneur.  Briefing on sector is relatively easy to provide through secondment or specialist training on the job.

It is, I would have thought, essential – especially in an age where law firms are going to be competing with ‘corporates’ in the provision of legal services – for the majority of lawyers within a firm to be highly focused on developing top level law knowledge and the skills of legal practice and not be distracted with trying to become hybrids or worse, jackthelads of all trades.

The fourth proposition is that we may be moving away from the values of ‘profession’ to business’.  There are many who say that many firms have already moved to the category of legal services business provider. That may not be such a bad thing?  The Bar, of course, retains the ‘professional’ status – arguably; with the majority of barristers focused on lawyering and not directly in the development of the business side of Chambers.  But even barristers, as sole practitioners, have to be alive to running their practices as a business if they are to make the money they wish to make and be alive to marketing et al.

David Allen Green, in our Without Prejudice podcast last week, took the view that legal practice in the City was not that interesting or that difficult.  He made the point that a lot of lawyering in the City isn’t about law;  it is about legal skills of litigation, procedure, negotiation, et al and where hard law was needed – the firms took counsel’s advice.  This may be an over simplification, but he has extensive experience of City and commercial practice and is dually qualified as solicitor and barrister and is at the sharp end. I asked a few of my friends and contacts in the City and at the Bar what their view was.  They tended to support David Allen Green’s viewpoint ; one even saying that he was no longer a lawyer, he was a rainmaker who knew the law.  This is fair enough.  He has a team of associates, fellow specialist partners and  access to counsel for the legal stuff – as he put it.

The fifth proposition is that we do not need to worry about the top City and Commercial firms:  They know exactly how to run their businesses and do so without need of assistance from The Law Society.  They rarely trouble the regulators.

What we do need to worry about, as a nation, is the smaller law firms, the less profitable areas of law – becoming less profitable with the cuts in legal aid and the inability of many to afford high quality legal representation. Lawyers can’t be expected to work for free or for low rewards when they could earn more elsewhere. We could end up with legal services, commoditised to absurdity, being provided by low level legal technicians – possibly through online forms or call centres and commercial pressures being brought to bear to settle cases – more often than not to the advantage of the rich or corporate and, of course, the Legal Commoditiser representing the ‘client’.

Are we sleepwalking (to use a much hackneyed phrase) into a nation where only the very rich or the profitable corporates will be able to enforce their legal rights?  We already are in the fields of family law, consumer law, housing law, criminal law…and many other fields of law for the reasons given above.  This is not, of course, in the interests of a first world nation which prides itself on freedoms and justice.  The Ministry of Justice and the professional bodies do need to address these issues.

The sixth proposition is that we need to be very careful of allowing the vocational education providers to park their tanks on the lawns of ‘academe’. I have observed before that the big vocational law schools – The College of Law and BPP Law School, which both enjoy degree awarding powers, are attempting to set the agenda for the reform of legal education by promoting their view of the legal education world order.  I shall return to this in a more detailed piece in the not too distant future. What I seek to point to here is that that we have a remarkable resource in our top and medium level universities with the experience of teaching black letter law.  At this stage, I would be reluctant to advise any student to take a College of Law or BPP University College degree in law – which they claim is more suited to the needs of practice – simply because, despite the future potential and resources of both law schools, they have no track record in the field of first degree or masters level ‘academic education’. Yet.

I am fairly sure that the top firms – rating The College and BPP highly for the LPC –  may not yet have an appetite for their degree offerings?  I could be wrong.  The proof will be when the top firms require their trainees to do degrees and the LPC at these institutions, instead of Oxbridge or Russell Group universities. This may well come in time?  Cardiff University and other traditional university law schools providing traditional law degrees and vocational LPC and BPTC courses are, ironically, better placed, at this stage, to secure such arrangements with law firms.  They do both the academic and vocational stage to a high level.

I mean no criticism.  BPP and The College of Law both have the resources to develop that skill.  It will take time. I just warn about blindly accepting their agenda at face value… or even emulating it through competitive fear.

The point I am making is that we should be wary of changing legal education to merge legal education with practice.  Northumbria University does it, to some extent, but they have the core of academic reputation, the highly qualified academic staff, the research experience to ease the student from academe to practice.  I am happy for The College of Law and BPP to demonstrate to me and others beyond doubt that they have, now, the experience and track record to do so.

Legal education is undergoing change.  Neil Rose, writing in  Legal Futures,  noted the new committee looking into the issue.  I know most of the people by reputation on that committee.  I suspect they will go for evolution..not revolution.  I certainly hope so.

The seventh and final proposition:  We should be very wary of becoming too ‘commercial’ as a profession – where advertising, marketing and networking produce the ‘unintended consequence’ of lowering the reputation of the profession (or the law firm).  That is a very large topic.  The Twlawyer knows what he is doing – but do you want to be Twlawyers?

I am, of course, merely an observer.  I am not a pundit, maven or prognosticator:   But I can, at least, draw a few propositions together for debate? I am also very aware that I am merely scratching the surface with these propositions.  Over to you – at the coal face.  Your views would be most welcome.


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Well.. it probably won’t gain traction.. but it does not seem unreasonable to levy the legal profession for using a  national asset… called “Law”?  In the ‘National Interest’?  🙂

And then… this front page from The Express to give a taste of what a wonderful country we live in.  I don’t read The Express.. but twitter is a wonderful resource for alerting one to weird sh*t….

Misogyny – jingoism – sexism – xenophobia – Euro Bashing – Royal Family nonsense and – GERMANS… and all for 35p.  Who can resist it…?

Sorry… forgot to mention *complete and utter bollocks*…with the National Service nonsense..

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It is unlikely that our Great Leader, prime minister Camerondirect, will feel the need to park a tiger ( a euphemism/synonym for vomiting which I have used for 30 years) after reading the European Court of Human Rights decision in MOSLEY v UNITED KINGDOM. The ‘unelected’ judges did the biz today for some vested interests.

Inevitably Mosley is seeking to appeal to The Grand Chamber.  The judgment seemed, to my eye, to be fairly robust and clear.  I suspect an appeal may prove to be an uphill struggle.  Judging by his entirely private hobby – a hobby enjoyed by countless thousands throughout the land? – ‘prior restraint’ seems to one of his interests. Good luck to him.  Could be good money after bad?

Rosalind English, writing in The UK Human Rights Blog, notes: “The Strasbourg Court has ruled that the United Kingdom has not breached the right to privacy by failing to have in place a “pre-notification” requirement that would have alerted Max Mosley to the News of the World’s impending publication of covertly filmed footage…..”

Libertarians and others with little taste for censorship of any kind will be delighted with this result.  The mainstream media will also be delighted with the judgment.  It would not surprise me if some newspapers now tweak that ‘margin of appreciation’ and not bother to ‘prior notify’ shaggers and other wrongdoers whose (arguably) private hobbies provide salacious delectation to readers of tabloids (and, latterly, the broadsheets)  in the mornings before work.

We have seen that twitter and the net has effectively sunk the superinjunction as a realistic tool for suppressing information.  This has been covered by many in recent days: A super-injunction toolkit

David Allen Green has this in The New Statesman: Thinking clearly about superinjunctions

One thing, for certain, is that the cats on twitter and other social meeedja will not be herded.  I suspect that any revision of libel law and privacy – separate issues but linked – will have to consider carefully the reality of the jurisdiction of the English court and the use of injunctions.  I cannot see thousands of tweeters being carted off to jail for contempt.

The difficulty is straightforward in one respect.  Freedom of the press is crucial to any nation. The right to privacy and freedom of expression are both enshrined by law.  Injunctions are not working.  Perhaps compensatory (or even aggravated) damages  may prove to be the only effective remedy for invasions of privacy – however defined – when Parliament finally gets around to drafting laws on this…as surely, they must now?

I do not know, but I suspect that commentators are right in saying that the judges will be losing little sleep on the issue. They will have an interest in ensuring that the rule of law is upheld – but it is not for them to prosecute injunction breakers? The judges are merely applying the law as it stands at present;  using a remedy of injunction which has been around for some time and developed in recent years to provide ‘some relief’.

Dominic Lawson, writing in the i newspaper, summed it up quite well when he stated that many who read of the exploits of the shaggers…  actors, footballers etc etc – role models for the future of our Big Society – are more likely to be impressed than horrified.  Worse… Lawson wrote… readers may even start emulating this behaviour.  So, is it really in the ‘public interest’ to know about these exploits and allow the press to make a packet from this mild top shelf porn… he noted, referring to Mr Paul D’Acre’s antics some years ago on this issue?

Freedom of the press is and should be about the really serious stuff – when those who govern, those who run large corporates, those in any public office affecting our lives,  transgress. We have a right to know.  That, really, is in the public interest.  Superinjunctions should be severely restricted in such instances, perhaps even abolished?  After all, if the allegations made by a journalist are wrong – the penalties can be high and made even higher by legislation. The debate will run and run… it is not over yet.


Carl Gardner, author the Head of Legal blog: Mosley v UK

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Mesothelioma Claims: Why the Supreme Court got it right

By John Carr, Solicitor

Carrs Solicitors pride themselves on delivering successful and fair results in all of our injury at work claims. This includes the compensation we have won for workers suffering from the effects of asbestos diseases an area that is often the subject of biased reporting in the media. 

A recent Telegraph article on Asbestos claims arising from a landmark legal decision of Sienkiewicz v Greif and Knowsley MBC v Willmore is a case in point.

The Telegraph Report: Regarding “The Asbestos Scam”
The article goes on to suggest that the decision is scientifically unsound and will cost “a lot of money” in “an asbestos bonanza.”

Christopher Booker says that a leading Histopathologist says that up to 25% of Mesothelioma cases are not attributed to asbestos exposure. Booker suggests that the brightest legal brains in the land have issued a ‘woolly judgment’ that blurs a crucial distinction between blue and brown asbestos with the significantly less harmful white asbestos.

Unfortunately the decision at no place says that most or possibly all cases are caused by white asbestos. The strap line in fact misquotes from the first two lines of the 84 page judgment which actually reads:

“Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres.”

In fact ‘ambient’ asbestos exposure where the victim is not or is no longer aware of the source of their exposure is widely believed to account for the majority of the remaining cases.
 Booker states that the significance of the judgment was that it seemed to ‘abet’ contractors who will ‘cash in’ and the lawyers will ‘exploit’ the supposed blurring of the risks associated with white asbestos and blue and brown respectively to promote an explosion of compensation claims.

In fact the real issue at stake was whether it was necessary to prove in each case that the proven wrongful exposure to asbestos was sufficient to have ‘doubled the risk’ of contracting the disease in order to prove that the wrongful exposure to asbestos had made a material contribution to the onset of the disease.

The ‘doubles the risk’ test was derived from an epidemiological convention of identifying a statistical association where the likelihood of an outcome has more than doubled. In recognising the limitations upon epidemiological evidence in establishing causation in limited exposure cases where the exposure was possibly 40 years earlier Lord Phillips held that there were ‘special features’ about Mesothelioma claims that render it inappropriate to decide causation on epidemiological data as to exposure and that the test for causation for an indivisible condition such as Mesothelioma was whether the wrongful exposure as opposed to other potential contributory factors could be proven to have materially increased the risk of developing the condition. This followed the approach of the House of Lords decision in Fairchild v Glenhaven where the same test is applied where the Mesothelioma could have been caused by wrongful exposure to asbestos where there are two or more potential defendants.

Booker rants about  ‘compensation scams’ ‘woolly headed judges’ and ‘the misery’ and ‘money’ we might be saved had the Seven Supreme Court Justices only decided against giving the asbestos scammers ‘ a great big hand.’ Even in making a tokenistic reference to the victims: ‘Mesothelioma is a very nasty way to die, and when it can be shown beyond doubt that it has been caused by asbestos, compensation may be fully justified’ Booker fails to address the real issue.

Even on Bookers argument if at least 75% of Mesothelioma cases are asbestos related, if the victim can prove that their exposure to asbestos occurred as a result of negligence or breach of statutory duty and that this exposure materially contributed to their condition why should the victims or their families be required to additionally prove ‘beyond doubt’ that it was caused by the asbestos exposure.

In the majority of Mesothelioma cases the victim has been exposed to large quantities of inhaled asbestos and in the absence of other likely causes causation can be established readily.

 Whilst the Supreme Court decision recognises the scientific consensus of opinion is that there is no safe lower limit for asbestos exposure, in many cases the Mesothelioma claims will still fail where the claimant or their family are unable to prove that the extent of the wrongful asbestos exposure is more than negligible.

The Supreme Court decision in Sienkiewicz is about setting a balance on the one hand between the Mesothelioma victims who can show that the breach of duty materially increased their chances of developing Mesothelioma despite the  evidential difficulties presented by the long latency period of the disease and the limits of science and on the other hand the those of the insurers who in common with their policy holders had access to published information from the early 1960s warning them of the risks of asbestos causing Mesothelioma.

Asbestos Claims: Support for Workers

The latest mortality statistics available from the ONS show 2,249 people died from Mesothelioma in 2008. Due to the increased use of asbestos in construction and other industries throughout the 60s and 70s the number of Mesothelioma cases is not expected to peak until 2016 according to the HSE.

If you believe you may have been exposed to asbestos at work, or have contracted an asbestos related disease, contact a solicitor at Carrs Solicitors. As dedicated work related injury and illness firm we will fight for you and your family to receive the compensation you deserve.

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To: The Partners

From: Dr Erasmus Strangelove, Partner, Director of Psyops, Strategy and Education



1. “Many reasons for solicitors to start using social media”

There are many reasons why we would encourage other solicitors to use social media.  I select but two:

(a) Tie up of competitor human capital on Twitter. It is now proven that lawyers can (and do) waste industrial amounts of time on Twitter.  Some, obsessed with ‘engaging’, are now forming breakaway groups to share their broadcasts and knowledge with other solicitors on Linked-In and sundry other ‘networking’ sites. It would appear, from the reports of our ‘operatives’ on the ground, that these lawyers appear to be talking to each other, rather than fee-paying clients. This is a remarkable phenomenon.

An article in the Law Society Gazette dated 6 May by David Laud noted, inter alia: “But a word of caution – not all who speak with marketing tongue can walk the social media walk.”

David Laud notes, and I quote verbatim:

‘I just don’t get it, everyone talks about it, but no one has the time to do it. Even when I do spend time on it, I’m not really sure what I’m doing.’

Views that may well resonate; but what is the answer?

Put simply, law firms have five main options. First, if they have not started to use social media, they could opt to just not bother.

Second, if they have made an attempt by, say, opening a Twitter, Facebook or LinkedIn account, they could stop right now and do no more.

Third, they could hire someone to do their donkey work and outsource the firm’s social media activity.

The fourth option is for senior management to instruct all fee-earners to embrace social media and open a variety of accounts, throwing the firm headlong into all things ‘social’.

And fifth, firms could introduce a workable approach to using the most appropriate platforms for the firm by setting a plan and working to it.

I particularly enjoyed this statement from the article: “The statistics are impressive: with millions of ‘friends’, ‘followers’ and contacts to ‘link to’, we ignore social media at our peril and risk being left far behind.”

And this comment raised a smile at my meeting with my BlackOpsDEVGRU as we put together our latest free “Social Media for Law Firms in 2011” newswire – under a different ident;  which we know is being widely read by our competitors:

What makes social media so appealing, but also introduces the element of risk, is that you can genuinely enter into a dialogue with your stakeholders.

(b) Needless to say, we are encouraging competitor lawyers to *engage* – a word for our times –  on twitter et al and, using the #FF hashtag our operatives have suggested quite a few serial tin foil hat wearers for our competitors to follow – with remarkable take up. The danger, of course, with engaging with ‘Followers’, is that one runs the risk of (a) wasting even more time and (b) being ridiculed for trying to uphold the system of justice we have in our country and the ‘Rule of Law’ by the aforementioned tin foil hat wearers.

This latter is, of course, not a problem Muttley Dastardly LLP will experience directly as we do not have a ‘direct’ presence on twitter.  For security reasons, I have not provided The Partners with the tin foil hat wearer account details we have established on this medium to ‘engage’ with competitor law firms.

Mr Laud encourages readers of his article in The Law Society Gazette:  “Please don’t worry about how you become a trusted, entertaining broadcaster. “ and then goes on to observe: “The vast majority of Twitter accounts are run by ordinary people, who have simply spent time understanding the language, tone and appropriateness of the medium. “

I suspect this latter observation will not sit well with the many on twitter who take a great deal of time to enjoy tweeting, do not like ‘broadcasters’  and would not consider themselves to be ‘ordinary people… blah blah..blah.” I do however, agree with his advice that competitor solicitors contemplating a twitter presence should not  worry about becoming a trusted, entertaining broadcaster… they should just become a serial broadcaster and I shall be recommending an *App* to enable them to pump out tweets overnight as they sleep, which will go down well with their ‘followers’. As to the ‘Entertaining’ element of tweeting:  It can, as the old saying goes, “be difficult to make a silk purse out of a sow’s ear”.

We are encouraged by Mr Laud’s Suggestion Three (supra) that law firms ‘hire someone to do their donkey work and outsource the firm’s social media activity’.  This advice presents us with a number of commercial opportunities to ‘assist’ our competitors ‘understand’ social media and get paid for it. My team is setting up an agency as I write.   Using the vernacular of a young trainee operating one of of our document shredders the other morning as he successfully disposed of some unprofitable client files… “Result!”

2. Competitor news

RollonFriday.com reports:

Taylor Wessing has introduced a new policy of disseminating details of its associates’ recorded hours internally.

With effect from March, associates have been told the hours recorded by each colleague in their team for the last month and for the year-to-date. So those at the top of the scale can smugly strut along the corridors and sneer at their humiliated, under-achieving friends as they desperately beg partners for work and the chance to put in an all-nighter.

Dr Erasmus Strangelove
Partner and Director of Education, Strategy and Psyops, Muttley Dastardly LLP

Strength & Profits


With thanks to the following for sponsoring the free materials for students on Insite Law magazine: Inksters Solicitors, Cellmark, OnlineWill.co.uk, BPP University College, David Phillips & Partners Solicitors, Wildy & Sons, Camps Solicitors accident claims Latimer Lee LLP Solicitors Manchester solicitors


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What now for contemptuous tweeting and media innuendo in the privacy injunction saga? – Judith Townend

In a precise and incisive blog post, Judith Townend writing on the Informm blog writes:

The BBC Radio 4 Today programme’s legal correspondent, Clive Coleman, reported:

“The posts on Twitter point up what for some time has been a concern that there’s one rule for the mainstream media and little or no rule for individuals publishing in breach of injunctions online.”

But is that a valid concern? The mainstream media has also got away with some heavy innuendo about the identities of the claimants – so far.

Those breaching the orders may well face serious penalties. One leading media law lawyer told me that the view is that people are testing how far they can go with the injunctions.

Sooner or later someone will take committal proceedings or sequestration proceedings, he suggested.

“Once someone loses a lot of money people will think twice about giving information that helps to identify the claimant.”

Reading tabloids recently  – and even some broadsheets – it may seem to the jaundiced eye that celebrities have ‘suddenly’ been featuring in articles even when they have no film, book or other product to punt. There has been a fair bit of innuendo in the press.  In practical terms, the writ of the High Court of England & Wales can only constrain those who publish within the jurisdiction of England & Wales.  Judith Townend makes the important point that mainstream media is advised of superinjunctions.  The rest of us are not.

She states: “A social media user who is aware of the injunction posts the name of someone whose anonymity is covered by the order commits a criminal contempt of court, he explained. Unless they have taken serious steps to conceal their online identity then their identity can be found out by means of a Norwich Pharmacal order.”

Joshua Rozenberg makes the point that if a tweeter is unaware of the injunction, the tweeter cannot be in contempt.  If the tweeter is aware of the injunction – through twitter, for example –  then liability for contempt will arise.  The Spartacus phenomenon… or safety in numbers – where thousands tweet the same information may cause a headache, but, theoretically at least, contempt proceedings could be brought.

It was noticeable on twitter yesterday – when a twitter account revealed information (obtaining countless thousands of followers in a very short time) that a number of regular lawyer tweeters made no reference to the twitter account, nor did they re-tweet.  Indeed, Adam Wagner of The UK Human Rights blog took time to remind his followers about the laws of contempt.  A re-tweet is, of course, a further publication? I repeat again, my cynicism, shared by David Allen Green who takes a ‘skeptical’ stance, that the mainstream media are well aware that the Mosley judgment is being handed down tomorrow – and that judgment may well be most inconvenient for their freedom of speech… or, more accurately, their freedom to increase revenues by ‘dishing the dirt on the shaggers’.  Public interest?  I rather suspect that many who clamour for freedom of speech would be less enthusiastic if their private lives were subject to public scrutiny. I could be wrong, of course.  And, of course, what of the rights of the innocent party – the wife and children of ‘the superinjuncting shagger’?

Injunctions, Twitter and the law

The Guardian’s Organ Grinder blog runs with the story…..So, can the courts stop all this injunction-busting chat on Twitter? And can tweeters be made liable?

Meanwhile.. Lord McNally, a Minister of State for Justice, digs up an old favourite to amuse himself….

The judiciary is becoming more diverse, but too slowly

The Guardian: Judges should be drawn from across our communities. We are trying hard to achieve that, but could do better….

Yes… the judiciary could be more representative of the community… but judges are not politicians, they are not ‘elected’, they are drawn from the legal profession.  the profession is ‘doing diversity’ or, at least doing their best to appear to be so doing, and it will take time.  It is astonishing that we still only have one female judge in the Supreme Court.  That will change in time. 60% of the profession is now made up of women.  Some women may well leave the profession for family and other reasons before being eligible for judicial office. The same’principle’ holds true for ethnic minorities in terms of access to a career in the profession.  The demographics are changing.

The irony is, of course, that with the rising costs of legal education – it is going to become ever more difficult for students from less privileged backgrounds to consider a career in law without taking on fantastic debt – so we may well be ‘sleep walking’ back to the days of a largely middle class, white, legal profession and future judiciary?

What we don’t need is positive discrimination and fast tracking – where we end up with judges who would not have been selected strictly on merit.  That merely serves to undermine the justice  system and patronises those selected. It may well take time before our judiciary is truly representative of the population at large?

And..finally… a retrograde step?

Theresa May hands power to prosecute back to police

The Guardian: Home secretary wants police, rather than crown prosecutors, to make decision in more than 80% of cases

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