Judgements on an Empty Stomach

Fortunately I have won a lot more cases than I have lost over the years - otherwise maybe it would be worth thinking of another career - but on the occasions I have lost, clients have sometimes suggested to me that maybe the judge had 'got out of the wrong side of the bed today' or 'not had a good breakfast'. It would have been too flippant for me to accept these as valid reasons rather than any weakness in my argument or its presentation, but some recent research quoted in The Times recently, suggests that these clients may have had a point.

Two researchers in Israel looked at more than 1,000 decisions by 8 judges over a 10 month period. The judges worked for 3 sessions a day, with a morning snack break (more than UK judges get methinks) and a lunch break. The researchers found that at the beginning of each session, a Defendant had a 65% chance of avoiding imprisonment, declining to almost zero before the end of the session and then raising again to 65% at the start of the next session. As the brilliant QC David Pannick says in his Times column, this is 'food for thought'!

Multiple Wives Inherit Man's Estate

A recent case highlighted that English law must recognise legal relationships created in other countries even when they are repugnant to our own customs, as well as the importance of making a Will. The case of Official Solicitor to the Senior Courts v Yemoh concerned a man from Ghana who had six wives legally recognised under Ghanaian law who died leaving several properties including property in England, thus six of the Defendants in the case were widows of the deceased. If the marriages had taken place in England of course, he would have been guilty of bigamy and only the first marriage would be valid if there was no divorce. The man left no Will (we lawyers would say 'he died intestate').

The case concerned the definition of 'surviving spouse'. Under section 46 of the Administration of Estates Act 1925, a 'surviving spouse' inherits a certain amount of their husband's assets, depending on the existence of the other relatives (i.e. children, parents etc – the rules are complex). However, in this case, the court held that there were six 'surviving spouses', so all who made claim to do so were entitled to inherit.

It no doubt made a considerable difference in this case, practically if not legally, that the deceased appears to have been a very wealthy man and so there was plenty to go around. It would be interesting to see how the court would deal with the situation of a man of relatively modest means who made a Will here, had assets here and had six wives to consider. It is also worth pointing out that the intestacy rules do not prevent a claim under the Inheritance (Provision for Family and Dependants) Act 1975 under which a spouse (amongst others) can make claims for 'reasonable financial provision', even though this Act is more familiarly used to challenge 'unfair Wills'. I think cases of this kind have the potential to cause a judicial headache for our senior judges.

Anthony Wooding
Head of Litigation Department, Kerseys

thanks for the feedback.....

We recently sought some feedback from diverse people on the new look of Kerseys website. Most of the comments have been positive and some 'constructively critical'. Quite a few of the suggestions for improvement we are aiming to incorporate over time. One or two have made suggestions to do things which we are not: we are not interested in presenting ourselves as slick, smooth, syndicated lawyers with lots of warm photos of models shaking hands and news items bought in from some anonymous legal news bank. We want to show what we do and actually come across as straightforward, professional approachable lawyers who are interested in the law as a developing, intellectual but practical subject; who know their stuff and who get stuck in for our clients without fuss. We hope our site, including our own news and blogs, reflects all that. Some have also said that's all very well but you need to sell yourselves too so we are adding a Recent Successes Page too.
However the most important feedback I have personally received (thanks Tim and Dave especially) was that I needed to tie my tie a bit better if it was going to be enshrined for a while in digital version on a website. So I turned to that excellent tome '85 ways to Tie a Tie', complete with it's intricate tie formulas, and have been practising the half windsor. Photos of the fruits of my efforts will appear shortly.

election court strikes again (after 99 years)

Phil Woolas, ex-Home Office Minister and Labour MP, best known perhaps for his lambasting from Joanna Lumley over Ghurka rights, has found himself on the front page yet again for the wrong reasons. He is the first person to be judged against by an the little-convened Election Court, for 99 years. His charge was under section 106 of the Representation of the People 1983 which makes it an offence to make a 'false statement in relation to a candidate's character or conduct unless he believes it to be true'. The case was brought by the Liberal Democrat Elwyn Watkins who lost the East Oldam and Saddleworth seat at the last General Election by 103 votes. The court, composed of two High Court judges who found themselves sampling a hotel in Saddleworth unexpectedly, found that the case was proved as Woolas has alleged that Watkins had received 'illegal foreign donations'. Woolas was not helped by an email before the court from an aide which said 'if he don't get the white vote angry he's gone'. The case was proved, Woolas has threatened the last resort of many disappointed litigants without a clear route of appeal, judicial review, and the 2010 election will be rerun in which, ironically, the Lib Dems are unlikely to win because election courts unlike common law courts cannot order the parties back into the position they would have been in if the default had not occurred i.e.here, back in time to May 2010.They can only order the election to be run again in real time and due to the unpopularity of the Lib Dems since the Coalition Watkins is probably less likely to win this one than the last. In the meantime (wrongly in my view) Woolas has been disowned, indeed suspended, by the Labour Party, when in fact he probably went little further than many candidates in his electioneering propaganda.

How the police kept the Venables indecent images trial secret

The trial and convictions of the 10 year olds Jon Venables and Robert Thompson for the murder of 2 year olds James Bulger in 1993 are etched on the minds of all of us who were around at the time. Jon Venables was released from prison on life licence in 2001. It has now come to light that he has committed serious offences on licence, including download indecent images of children and worse still posing under a female alias on the internet willing to trade her daughter for abuse in return for indecent images, to which charges he in the end pleaded guilty and now remains back in prison. Apparently, as we are now told, the offences only came to light because Venables himself contacted his probation officer fearing that his identity had been discovered and was in fear of attack. His probation officer said he would come round to help him move to a safe house and told him to gather his things. When the officer came round he found Venables trying to destroy the hard drive on his computer with a tin opener.



The Venables case raises all kinds of social and legal questions but I only want to concentrate on one in this post. The police faced a dilemma at the start of the investigation, namely how could they possibly resist a challenge by Venables' lawyers that he could not face a fair jury trial once the likely risk had materialised of his true identity being revealed.



There were two problems. The first was that criminal process starts in the local magistrates court, even though more serious cases such as that of Venables are later transfered up ('committed') to the Crown Court. This meant that far more people around: in magistrates courts there is constant traffic in and out of cases, as I recall from my days as a criminal lawyer, and there could easily be 30 people in one court room alone, either involved in a case, waiting for their case to come or departing at any one time, all of whom would have varying degrees of local knowledge. The local press hound is often there looking out for interesting leads. The odds of identification of Venables at that point was very high, thus scuppering the prospects of a fair Crown Court trial later.



Leading counsel hit on a rare procedure to get round this, one which I have never heard of it (but then that is why leading counsel is well,, leading). This is called a 'voluntary indictment' and means that a defendant can be brought straight before the Crown Court rather than through normal committal proceedings, on the authority of a High Court judge. Venables' lawyers did not object to use of this procedure as they were as concerned for Venables' safety as the prosecution were to bring him to trial.



The second problem was that whilst a worldwide anonymity order had been granted to protect Venables and Thompson upon their release in 2001 which prevented any court reporting that could identify them, this did not prevent reporting of proceedings in the Crown Court (presumably it was not considered at the time that they would commit further crimes and as a result needed further identity protection). The best that could be done was to issue to the media a further gagging order but this has to say that Venables had been charged, but no details given of the offences. Hence the furore of speculation in the media at the time, who were already aware that something was afoot.

It was still possible that Venables could be tried under an assumed name but there remained a grave risk of the true link being made by the jury between the man being tried for child pornography offences and Venables the child killer. In the event however Venables never appeared in court. On July 23rd, seen only on a laptop by the judge, he pleaded guilty to all offences and was sentenced to two years imprisonment.

How to complain effectively in life and everything

In my practice as a litigation solicitor over the last 25 years many people have come into my office with a bundle of papers representing a complaint about some service they have received and told me how frustrated they have become with the process of complaining.. From their experiences I have distilled twelve basic tips to help you on your way to effective complaint.

• Find out if there is a complaints procedure and if so get a copy of it. Many industries are now obliged to have a procedure and many others chose to have one. If there is no procedure work out to whom you should be sending your complaint which, if in doubt, needs to be someone who has authority to deal with it
• Write a summary of the background to your relevant dealings with the company (chronologies are often useful, but only key dates are necessary) and of the reason for complaining. Except in the most complex of complaints this should be no more than a side of A4. This will be your letter of complaint
• Be firm in your language but don’t get emotional, ‘personal’ or abusive. We can’t help it when we’re very cross but believe me it won’t help you to let this spill over and may make it less likely that you will be taken seriously. Calling someone a ‘bare-faced liar’ is unlikely to be necessary for you to succeed in your complaint and you probably can’t prove it anyway. Rather say they have made a mistake where possible. . We all make mistakes occasionally and establishing a mistake is often all you need to succeed in your complaint
• By the same token avoid irrelevancies e.g. it may be that one person in the company did spell your name wrong ‘on top of it all’ but is that relevant to your core allegation? All including it does is slow down the resolution process as the company tries to investigate and answer each item, relevant or not to the desired outcome
• Set out in the letter what you would regard as a successful outcome. Set out your losses although on the subject of compensation it may be best at this stage to keep the figure open to allow negotiation ( it is possible in some cases to get compensation for distress and inconvenience but usually this is a ‘negotiating issue’)

• It’s useful to remember and to articulate that you and the company have a common cause: to improve the company’s service for the future
• Let someone else check your complaint letter before it’s dispatched. Make sure the letter is dated and copies of all relevant documents are attached. Keep a copy of your letter and retain all original relevant documents
• Pace any chasing up. Companies are busy and you are not their only problem. Only the biggest ones have complaints departments. Make sure that they stick to their own procedure, but otherwise as a rule of thumb, unless your case is urgent, or alternatively very complex and time-consuming, it would be reasonable to expect an acknowledgement in 7 days and a substantive response in 28 days
• Take seriously any response, even if it rejects your complaint as long as reasons are given. After all, you may have been mistaken yourself.
• If you make progress, be prepared to negotiate. It is rare for one party to be wholly in the right, still rarer for them to be able to prove it. It is usually sensible to accept a deal as long as its reasonable, even if not ideal
• Decide whether to take legal advice. For very small value complaints this may not be an economic option. However many legal firms offer a fixed fee interview which may be a useful check on whether you are going about things the right way. A good lawyer will tell you whether he thinks you could do better or worse in court which may well determine whether you should settle. He/she may bring you down to earth or find a way to make your complaint more effective with some tweaking or see a way to get higher compensation. In some cases legal costs can also be claimed, depending on the type of complaint and its value.
• Finally, don’t let the complaint dominate your life, even for a second. There’s more to life than complaining

Saying it with flowers: a recent European Court decision case on internet searches and trademark infringement

A recent case has gone some way to clarify the law on use of tradenames for internet searching. The case concerned Google Interflora and Marks and Spencer. Type in Interflora and a Google search and you will get Marks and Spencer Flowers as the second sponsored link on the screen

Whilst I'm not a techie I believed it has something to do with the keywords behind the M&S site which might include the word interflora or similar. Understandably Interflora were not very happy about this and there is ongoing litigation between the two companies of which a recent European judgement is a staging post if hardly the end of the line. Part of the fire was directed at Google itself and whether it was guilty of infringement of the Interflora trademark for allowing this to happen. Google escaped on this one as the court held that creating the conditions for third parties to use a trademark did not mean that Google itself was using the mark. However the court held that third party advertisers could be liable 'in the case where the ad does not enable the average internet user, or enables that user only with difficulty, to ascertain whether the goods and services referred to therein originate from the proprietor of the trademark or an undertaking economically connected with it or, on the contrary, originate from a third party'. Thus confusion in the mind of the internet user is key to whether the law has been broken. No decision was taken about whether M&S had created such confusion, hence the litigation will have to go to further rounds. M&S will no doubt say no because it is clearly demarcated as a separate company selling a common product namely flowers.
Google itself could also be held liable as accessory to trademark infringement if it was informed by an injured party of illegal activity by a third party and failed to act promptly by removing or disabling the offending data.
Incidentally, if you type M&S flowers into Google you will only get the M&S site. Testimony it seems to M&S commercial muscle or possibly the muscle of its legal team.