Archive for December, 2012

Dear Reader,

Well… let’s start with a proposition I saw on The Grumpy Guide to Christmas (BBC) and take it from there…

Why would anyone want to bring a tree into their living room?  Who cooked that idea up?  And another thing… if an elderly gentleman wearing  a red gown  broke into my house –  I would check the Judiciary website out to see which judge of the High Court had finally lost the plot.   Mind you, Lord Chancellor Killaburglar Grayling would approve if I used proportionately disproportionate force and acted against the interests of the intruder – so not all bad, I suppose.

It has been a strange year.  I have finally escaped from London forever and have moved to Chatham Maritime in Kent  as a base – a place which I find most conducive to thinking and writing.  I have also started on my year (+) long UK  Jag Rouge Tour looking at the state of our legal system and getting views on it from lawyers, police, academics and anyone else interested in the law – including filmed vox pops with ‘members of the public’ – which should throw up some strident and trenchant views.

I am finding it a fascinating exercise to do and learning a great deal from the many experienced lawyers who have taken part so far.  I am also grateful to the sponsors for assisting with the not insignificant costs of this exercise which is free to all to read, listen to and watch on my blog and the Tour blog.  And, the tour certainly can’t happen without the support of many who have talked to me so far and the many who  intend to do so in the future –  all give freely of their time and knowledge.

Jon Harman – has designed an advert for the tour – please do click – he has done great work!

Van Rouge from Jon Harman on Vimeo.

A duck alerted me by text  to this gem from television news: … We’ve just seen headline in papers about a drunk manager attacking a tree”… Jeez.. you guys know how to Party!”

And talking of ducks – I came up with the idea of ducks texting me earlier in 2012.  Apart from the fact that I find ducks fascinating, the ducks I know are subversive and contribute greatly to my knowledge and understanding of the chaotic world many of us live in.  I may also have overdone the juice when I came up with the idea of texting ducks… but, mea culpa, there we are.

I shall be at my post throughout the Christmas period… aided and abetted by subversive ducks… we never close…

I rarely write about myself – and interviews with me are few. I did, however, enjoy the kind invitation from Alex Aldridge of Legal Cheek to contribute to his excellent “If I knew then” series:

If I knew then what I know now: ‘I was too ready to treat the view of the experienced as gospel’

And this duck had absolutely nothing to do with me… despite views expressed to the contrary on twitter by surprisingly many!  But what a great duck!

Well… I think that is enough for now – but I may write another Christmas card on the morrow.  Why not?  It is Chrimbo, after all – and, even though I shall be at my post, ignoring it, I hope you have a good one – if it is your thing.

And… if you are a user of twitter and Farcebook – you might enjoy listening to John Cooper QC expressing his views on the CPS guidelines on social media prosecutions  issued earlier in the week by DPP Keir Starmer QC.  A Christmas cracker!  It is here and if you scroll down – below

Best, as always


PS.. and remember… a duck texted me to say that they, too, are bipedal and asked if I could fly!  Think about that!

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Tour Lawcast 14:  John Cooper QC on the CPS guidelines on social media

“Well I don’t think John Cooper with all respect has seen anything like the number of cases I have. I don’t think he has thought about the sophistication of the issues. There are many cases…I mean he can point to one case [the Twitter Joke Trial]…yeah he makes a cheap point about one case, I’ve got to deal with the many thousands of cases that come in, I’ve got to deal with all the chief constables. So, yes, nice cheap point, but actually let’s get back to reality.”

These are the reported words of Director of Public Prosecutions Keir Starmer QC following the issuing of new guidelines on social media prosecutions when he was placed under pressure by criticism raised by an experienced criminal silk, John Cooper QC.

Speaking on Radio 5 John Cooper QC said of the guidelines  …”totally and utterly unnecessary”, adding that the 25 pages would be better condensed to “two words: common sense”.

Today, I talk to John Cooper QC about the CPS guidelines on Social Media.

Listen to the podcast

iTunes version of the podcast

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Is it the end of the world for Personal Injury Claims?
By Kevin Donoghue, Solicitor

At 11.12a.m. on Friday 21st December 2012 the Mayan Long Count Calendar will read for the first time in 5,125 years.

This event, some say, will lead to the end of the world. Theories about how this will happen include a solar storm, a switch in the Earth’s magnetic poles, another planet colliding with Earth, a planetary alignment, and a total Earth blackout.

Mayan Temple of Kukulkan, Chichen Itza, Mexico.  The Temple is a monumental representation of the Mayan calendar.

For many of those in England & Wales involved in civil litigation and in particular personal injury claims, the Mayan calendar is premature. The End of Days is expected to be in April 2013, when a ‘perfect storm’ of changes to the English legal system come into effect. The anticipated reforms include:

* Implementing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which removes the recoverability of legal costs for the winning party in most circumstances
* banning referral fees in personal injury accident claims
* extending mandatory use of the fixed-fee RTA online ‘portal’ to include cases valued at up to £25,000
* bringing other types of accident, such as public and employer’s liability claims, into a similar fixed-fee portal scheme
* drastically reducing the costs paid for cases in those portals
increasing the small claims limit from £1000 to £5000 for Road Traffic Accident (‘RTA’) personal injury claims (including, but not limited to, ‘whiplash’ soft-tissue injuries)

If these reforms are implemented in their entirety, the likely effect will be to dramatically reduce access to justice for accident victims in all areas of personal injury, not just RTA claims.

Government policy with personal injury claims
In pursuing these reforms, the government has been strongly influenced by a small but powerful group of insurers, who have successfully convinced ministers that the solution to the increase in insurance premiums, particularly motor policy costs, is to remove lawyers and their fees from the process in all but the most serious accidents. By doing so, the government will be able to:

• combat fraud (which, while reprehensible, in motor claims adds only £3.83 per policy),
• attack the perception of a ‘compensation culture’ (which Conservative Lord Young of Graffham reported in 2010 ‘is one of perception rather than reality’)
• save legal costs (the current proposal in the RTA portal is to reduce pre- proceedings settled claim costs from £1200 to £500), and
• reduce the number of claims made against government and local authorities (as claimants will struggle to find lawyers willing to represent them in anything but the most straightforward of cases), and
greatly increase the chances of failure of any claims made (as a consequence of the inequality of arms caused by claimants being un-represented and/or under-funded).

Small Claims
The most significant change will be the increase in the small claims limit, an idea which was considered and rejected in 2007, and again in 2009 (then by Sir Rupert Jackson, who is responsible for many of the above changes but sensibly felt that they alone would suffice to achieve his aims).

It is presently being considered in another consultation paper which was prepared following February’s closed door sessions involving the government and insurers only. Claimant representatives were not invited.

The impact in practice is clear when considering the latest Judicial College Guidelines, the ‘Bible’ for valuing accident claims.

This book is relied upon by judges, barristers and solicitors to give ‘ballpark’ figures when assessing claims. Most importantly, it is referred to by claimant solicitors when considering whether to represent a potential client.

It shows that people who have suffered serious injuries, such as those involving broken bones, will be unable to claim legal fees if the small claims limit is increased.

Examples include a fractured wrist which takes up to a year to recover (valued by the Guidelines at between £2500 to £3375), a partial amputation of the little finger leaving residual sensitivity (valued at between £2800 to £4200), and a whiplash injury taking up to a year to recover (£3100),

Consequently, if the limit is raised, many innocent accident victims will be forced to represent themselves or pay privately out of their own pockets if they want to instruct a solicitor to make a claim. The days of ‘no win no fee’ representation, where the solicitor ensures that the claimant receives 100% of their compensation, will be over for them.

Winners and Losers
Solicitors and their staff, barristers, job-seeking law college graduates, unions and their members (who rely on referral fees to minimise dues), the Court system and judges who will be dealing with unrepresented people, the public purse (which will see reduced income and increased benefits claims as a result of law firms failing), but most of all innocent accident victims, will all suffer.

Those involved in the insurance industry, including insurance companies and their law firms, shareholders, and the Conservative Party (which has received millions in insurance company donations in recent years) will all do well.

Fraud on the innocent
Justice Secretary Chris Grayling (who received £71,000 from Peter Wood, the founder of Direct Line, to fund his office) stated when issuing the consultation paper on the proposed increase in the small claims limit that it would ensure that ‘genuine’ claims are settled while ‘fraudsters are left in no doubt there will be no more easy paydays’.

But how big a problem is fraud in personal injury claims? According to a recent report in The Actuary, in 2011 more people made fraudulent claims when exaggerating home insurance losses (71,000) than those who made dishonest motor insurance claims (45,000). If, on the insurers own figures, only 7% of all motor insurance claims are fraudulent, why force through such massive changes to our civil justice system to harm the honest 93%?

Trust the insurers
For those soothed by Mr. Grayling’s words that genuine claims will be dealt with fairly, the Court of Appeal judgment of 12 December 2012 in Christine Brown-Quinn & Others v Equity Syndicate Management Limted and Motorplus Limited is worth considering.

In that case the Court found that before the event insurers who restrict an insured’s right to instruct a lawyer of their own choosing on the basis of cost were in breach of The Insurance Companies (Legal Expenses Insurance) Regulations 1990. This law gave effect to European Directives and Regulations going back as far as 1997, and had been brought to the insurers’ attention then, and again in 2002 (Sarwar v Alam).

Nevertheless, insurers continued to write policies which were non-compliant to ensure that their panel solicitors were instructed by their customers to save costs. Consequently, innocent accident victims were prevented by their own insurers from instructing a solicitor of their own choosing.

The Court of Appeal, not known for its strong language, lambasted those same insurers in Lord Justice Longmoor’s judgment which states ‘The facts of this case have revealed that the insurers exhibit an insouciance to their obligations under the Directive and the Regulations which leaves one quite breathless.’

Given that, in this case, the victims of insurers’ sharp practice were people who had paid their own insurers for cover, imagine how unrepresented victims who make a claim against insurers will be treated.

Reflection time
Contrary to the popular view, the Maya themselves do not consider 21 December to be the End of Days. According to Dr. Jaime Awe, Director of Belize’s Institute of Archaeology, the significance of 2012 is that it ends one cycle and begins another. As he says, ‘it is a time for reflection, and for considering future direction.’

The government would do well to heed his words, think about the impact of these reforms, and keep the small claims limit as it is. As the consultation on raising the limit is anticipated to conclude on 8 March 2013, just 14 working days before the reforms above are due to be implemented, there is still time.

Kevin Donoghue is a solicitor whose firm, Donoghue Solicitors, represents people who make personal injury claims and actions against the police. Donoghue Solicitors is an Association of Personal Injury Lawyers corporate accredited practice.

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Obligations and Responsibilities of Owning a Website
Ben Travers, Stephen Scown Solicitors

An increasing number of agricultural businesses are diversifying and operating a website for the first time. Ben Travers, head of intellectual property and information technology at Stephen Scown Solicitors in Exeter explains what you need to think about if you own a website.

While a website can be a powerful marketing tool, many are unaware of the obligations and responsibilities which go with owning a website. Web users are becoming increasingly aware of their rights online so it is important that websites are legally compliant. The range of issues which apply to website owners is vast and can appear daunting.  Yet, with careful thought and clear guidance, the legal pitfalls can be navigated. One of the biggest issues facing web owners is privacy.  The Data Protection Act governs how businesses can collect personal data online (such as email addresses) and what businesses can do with that data.  Whilst the act does not require businesses to have a privacy policy, having an effective policy available on your site and sticking to it, can go a long way towards helping compliance.

Recent changes in the law create further burdens for websites which use cookies (small pieces of data installed on a user’s computer when they visit a site).  Most websites use cookies and must now provide full details of the cookies used and obtain consent from visitors before installing cookies.

Additionally, website owners should consider putting terms and conditions of website use in place.  These are designed to create a contractual relationship between the owner and visitors to the site, helping owners control the use of materials on their site by third parties, control third party links and limit their liability, including liability for any content posted by users such as messages posted on a forum. Such terms also help you to comply with your legal requirements to provide certain information to your visitors about the business operating the site. Businesses must also be aware of their obligations to consumers.  The law gives great protection to consumers buying goods online and compliance with the Distance Selling regulations, which set out the circumstances in which consumers can return goods purchased online, is important.  Ensuring your online dealings with consumers are legally compliant is crucial, not just for avoiding the legal implications of non-compliance, but also for protecting your reputation.

For more information please visit
Stephens Scown LLP Exeter
Curzon House, Southernhay West,
Exeter, Devon EX1 1RS

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Timely advice on the drink driving laws
Jeanette Miller, Senior Partner of Geoffrey Miller Solicitors

With the festive season upon us, the subject of drink driving is more of a hot topic than ever. However, it will probably also be the subject of debate amongst lawyers like me who specialize in drink driving law, due to the imminent closure of a government consultation to change the procedures involved in drink driving cases.

According to the government, we have a significant problem with the drink driving culture in this country. A whole host of (expensive) law changes to remove the “loopholes” that allow so many offenders avoid conviction are being proposed.

There are many issues that are, in my view, cause for concern but perhaps the most serious for the motorist are:

The proposed abolition of Blood or Urine Tests In Borderline Cases (The statutory option)

When arrested for drink driving, motorists are ordinarily taken to a police station to provide an evidential breath sample. Currently the roadside reading taken by the police is not treated as evidence to be used in court but is purely used as a trigger to arrest a driver on suspicion of drink driving.

When at the police station the motorist will usually be asked to provide two further breath tests on a Home Office Type Approved Device and the lower of the two readings at the police station is used in evidence against the driver.

The legal limit in England, Wales and Scotland is presently 35 microgrammes of alcohol in 100 mls of breath which equates to 80mg of alcohol in 100 mls of blood. (Most European countries including Ireland have a lower limit of 50 mg.)

Once the evidential breath test has been performed, if the lower of two readings is above 50 microgrammes, they will simply be charged with the offence of drink driving.

If the lower of the two readings is 39 or less, the police have discretion to allow a suspect to be released without charge.

However, if the reading is 36-50 microgrammes there is currently a legal requirement for the police to offer an option of replacing the breath reading with a blood or urine test.
When the breath test reading is this low it is considered borderline and for the sake of fairness, the suspect can have the option of electing for their breath reading to be replaced by either a blood sample or a urine sample.

The proposals currently being considered would abolish this process. It has been suggested by the government that by allowing the detained motorist the option of a more accurate reading, there is a loophole capable of being exploited in as much as the delay in arranging for a doctor or nurse to get to the police station to take the blood sample often means the suspect has fallen below the limit by the time their blood is taken.

Changing the evidential status of the roadside (preliminary) breath test

Under present law, if a police officer stops a motorist they can only request a breath test be provided in certain circumstances. The roadside sample is a preliminary sample used only for the purpose of establishing if the motorist should be arrested or not. The roadside breath test is often simply a “pass” or “fail” with no numerical value and is currently not used in evidence against a motorist. Instead, the roadside test is the trigger to allow the police to insist on an evidential test being performed at the police station.

However, the proposals seek to suggest that roadside tests be used in place of the police station tests. The government’s justification for this being to cut down the time it takes to transport a suspect to a police station and go through the procedures etc.

Whilst I can see the definite benefits of this from a resources perspective, again, this would, in my view, mean motorists were wide open to miscarriages of justice. When a suspect is taken to the police station, supposedly more accurate breath testing devices are used and there are a number of safeguards in place to protect the motorist. Stringent procedures must be followed in the formal setting of a police station often with CCTV recording the process. In the wake of the Hillsborough scandal, removing this safeguard and allowing officers to conduct evidential tests at the roadside, is a dangerous move.

There are other less controversial proposals relaxing the rules on who can take blood samples from suspects who have been hospitalized and who can perform impairment tests.

Drink Drivers Deserve What’s Coming To Them – Who Cares?

I am sure most people reading this blog will have strong views against motorists convicted of drink driving. Most of my clients share those views and never expect to be over the limit when they are stopped. Investing in education as opposed to slashing the budget for anti-drink driving campaigns would be a far better use of taxpayers’ funds. Streamlining the process will criminalise a significant number of otherwise law abiding motorists – Hardly a real solution in my view.

The government’s consultation is open for responses until 02 January 2013.

Jeanette Miller is the Senior Partner of Geoffrey Miller Solicitors, proudly supporting Charon QC UK Law Tour

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Avoiding personal injury over Christmas
Laura Wright

Christmas is approaching fast, and for many of us this means having time off work and the opportunity to let our hair down and celebrate. Combine the festivities with the longer nights and stress of dealing with busy shops and roads at this time of year, and it is unsurprising that accidents are at their peak.

If you are involved in accident over Christmas, whether it is on the road, at work or even on the street. If the accident was not your fault, you can claim compensation for any financial deficit you incur. For assistance with your personal injury claim, consult with specialist injury solicitors to ensure your case has the best chance of being successful.

The roads become especially dangerous this time of year. Icy and slippery conditions, or potentially intoxicated road users means extra care must be taken to avoid accidents on the road. If the roads become torturous this winter, be sure to take your time and fit extra-grip tyres to your vehicle to reduce the risk of being involved in an accident. Road accidents could potentially happen to anyone, whether in a car, on a bike or as an unfortunate pedestrian in the wrong place at the wrong time.

Having an accident this time of year will certainly be stressful to say the least during the festive period. It is always better to not be in a situation where an accident is likely to occur, however you do not want to miss out on any public gatherings and festivities that you plan to attend. Accidents in public are commonplace and slips and trips are the most common accidents in public places and events. In order to avoid such accidents, be aware of the surroundings and do not take any unnecessary risks.

In the event you are injured, it is important to secure hard evidence of your injury in that location. If you are injured in a quiet street for instance, there may be no witnesses to back your claim. In this case, you will need other evidence to support your case such as photographic evidence of an offending item that caused your injury.

Avoiding any kind of injury is what we all hope for but if it does occur, be sure to claim for accident compensation to at least avoid the financial anguish that will be brought upon yourself and your family this season.

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Aviation Law – understanding the fast paced industry

Aviation lawyers work within one of the most complex and fast paced industries. As the industry continually develops, the law and regulations governing aviation law have to change and adapt. Due to the increasing regulatory demands on businesses within the aviation industry, as well as the numerous issues faced by all businesses, it is essential that aviation companies seek advice from experienced aviation lawyers who can provide the appropriate advice and assistance.

There are numerous types of businesses which rely on the advice of aviation lawyers. These range from travel companies to airlines and airports as well as private charter companies and fleet owners. The complexity of aviation law means that aviation lawyers often specialise in niche areas in order to provide effective legal and commercial advice from drafting and negotiating contracts to facilitating businesses transactions..

Although businesses often engage the services of aviation lawyers to facilitate business transactions, businesses also require aviation lawyers to assist them when disputes arise. If, for example, a company purchases an aircraft component and finds the quality is not as agreed, then they may require a specialist in aviation law to assist in remedying the situation. Enforcing the terms of a contract or defending a company when disputes occur requires specific legal knowledge as well as in-depth knowledge of the industry so clients are generally advised to seek the services of an experienced aviation lawyer.

Due to the nature of the industry, many business transactions are multi-jurisdictional. Aviation lawyers are aware of the international nature of the industry and how this affects the business both commercially and legally. For example, different jurisdictions may have varying regulatory requirements which must be adhered to. In addition to having legal knowledge and being aware of key industry issues, aviation lawyers also understand how laws and regulations in other jurisdictions may impact their clients are able to provide appropriate business and legal advice.

As well as facing sector specific issues, businesses within the aviation industry also face similar issues to other businesses. They often require legal advice and assistance regarding issues such as employment and avoiding employment relate disputes in addition to other commercial advice. Experienced aviation lawyers can assist companies with hiring an effective workforce and providing the appropriate documentation to meet their legal obligations. Aviation lawyers can also provide advice regarding appropriate business structure and whether corporate restructuring would enable a business to fulfil its commercial objectives. The wealth of knowledge aviation lawyers have enables them to provide specialist advice regarding aviation law as well as assist businesses in finding solutions to complex commercial issues. By engaging with specialist aviation lawyers, companies operating within the aviation industry can ensure they are operating legally and that they are fulfilling their regulatory obligations as well as maximising their success within the industry.

ASB Law’s aviation lawyers are passionate about anything to do with aircraft, engines and aviation. Whether you are buying, selling or leasing aircraft (commercial or corporate jets), aircraft engines or components ASB’s aviation lawyers provide specialist, practical legal advice.

ASB Law can deliver:

practical solutions beyond just legal advice
advice backed by a genuine passion and knowledge of the aviation industry
specialist legal advice on every aspect of aviation asset management
high quality, cost-effective service

For more information and advice, please visit ASB Law

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