Legal poetry

There aren't many poems about the law. Perhaps not surprisingly because the law is regarded as dry, of the mind not the spirit, perhaps even dull to the uninitiated.

But on the other hand, I have known many lawyers and even some judges take poetic licence with the law occasionally...

Anyway here's one poet, W H Auden, who was brave enough to do the reverse and take poetry into the law. Perhaps a weaker effort from the writer of such greats as 'Stop the Clocks' but a valiant effort in a tricky marriage.




Law Like Like Love


Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Law of negligence - the mysterious case of the snail in the bottle

The last post was on the basics of contract law, one of the principal cornerstones of English common law. So I thought this time I would go for the other one, tort. It is of course not a word non-lawyers will be familiar with, but it essentially covers the categories of civil wrong which are not based on contract or statute. The main torts which spring to mind are trespass - to the person, to land and to goods - nuisance and negligence. This time I am going to talk about negligence.

The essence of negligence is that people should take reasonable care to avoid causing harm to others. It practical terms it covers many types of claim people will be familiar with e.g road traffic accident claims, accidents at work and claims for mistakes by professionals and others.

For a negligence claim to arise there has to be a duty of care, a breach of that duty and foreseeable loss. These terms have been argued over for decades. The leading case is Donoghue v Stevenson, a case heard in 1932. Donoghue claimed that she had become seriously ill as a result of imbibing a bottle of ginger beer which had the decomposed remains of a snail in it. She wanted to sue the manufacturer but of course there was no contractual relationship between her and the manufacturer. In a famous dictum, Lord Atkin developed the principles which have more the a ring of The Bible about them, expounding that you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour i.e. love thy neighbour as thyself.

Reasonableness crops up a lot in negligence and indeed in law generally. There is often talk of the reasonable man who used to be called the 'man on the Clapham omnibus', to indicate he had the common touch, and values, of all right-thinking members of society. Of course today he would have to be the man, or woman of course, on the Nintendo Wii, but you get the point. What the reasonable man should care about and foresee, the Defendant in the case should have foreseen, and if it wasn't right, taken steps to avoid it.

In passing, it is important to remember the judges cannot create law, at least in theory. Therefore when some students say the the law of negligence dates from 1932, this is strictly wrong. It would take some historical jurisprudence research (which I think I would enjoy, if I had the time) to trace back the common law before this but Winfield and Jolowicz on Tort says the judges had been led astray by some fallacious dicta in a case of 1842. Presumably before that it was the man on the sorrel horse who held sway. It is fascinating how the law of negligence adapts to new circumstances in society, whilst keeping of course the core principles intact if reinterpreted in a modern way. There are cases now about duty of care owed by the army to soldiers, which thought would have been unthinkable of course at the time of the Crimean War (see an earlier post of mine). One area which I think is ripe for development within the law of negligence is irresponsible mortgage lending. There are cases where it is clearly foreseeable that the borrower will not be able to repay under the loan terms. It's true that the borrower has breached the contract but what duty did the lender owe tho him in selling the loan? Is it justifiable that the lender should take his house when he knew or ought to have known that there was no real prospect of the borrower keeping to the instalment terms? I have a case in this area running at the moment which is going to appeal from a possession order. Will the new Lord Atkin please stand up?

WHAT IS A CONTRACT? (and being buried above Marilyn Monroe)

• My last post was about the Marx Brothers and their entanglements with contracts both on and off screen. It occurred to me could I do a more serious short post about what is a contract. The purpose of this blog is to reach curious non -lawyers not so much to engage will fellow legal professionals who I tend to engage with anyway. If asked could I accept a challenge to explain to the uninitiated what contracts are all about, but not in the way we learn at Law School?. After all, along with negligence, it is probably the cornerstone of common law. In almost every first interview the word crops up and perhaps I don't always take the time to explain the principles. I am going to do this on the radio show next week as well.
  
  So here goes.
  
  A contract is no more or less than an agreement. For there to be an agreement there has to be two or more people (a lot of people agree with themselves but they should not really). The key ingredients are:



• Offer and acceptance. One party has to offer some terms and the other party has to accept those terms. Silence is not acceptance but conduct can be examined to see whether the contract has been formed. In practice this area rarely troubles us because even if we can't find a formal 'I accept', the parties act on the terms. But it means you cannot accept by sliding in different terms (that is usually termed a counteroffer), and an offer can be withdrawn any time before acceptance. Also some contracts have formal requirements for formation (see below)



• 'Privity of contract'. Generally, only the parties to the contract are bound by it or can benefit from it. However there are some technical but not insignificant exceptions, particularly relating to land law (e.g. in the area of restrictive covenants) which I won't go into now. Also a significant blow was dealt to privity at the end of the last century by the Contracts (Rights of Third Parties) Act 1999 which allows persons who are not privy to the contract to enforce it if it was contemplated that they would benefit from it, unless such right is expressly excluded in the contract (which to be honest it often is, by astute lawyers)



• 'Consideration'. Generally for a promise to be enforceable the other person must not only accept but provide what is known as consideration i.e. some value back which is regarded as such by the promising party. This is usually money or property but it does not have to be. There is a principle that although consideration has to be have 'value in the eyes of the law' it does not have to be adequate: one penny will do if that's what the other party is happy with. A bid has been accepted for $4.6 million for the burial plot above Marilyn Monroe promising ' the chance to spend eternity above her'. People are entitled to have more money than sense in law. However there have been some cases over whether consideration has actually been deemed valueless. An example is White v Bluett (1853) in which it was held that a son had not provided consideration for his father's promise not to enforce an extant promissory note by promising in return not to bore his father with his complaints. However contrast Ward v Byham (1956) in which a promise by a mother to make an illegitimate child 'happy' was regarded as part of the consideration for enforcing the father's promise to make an allowance. Actually I think most of us can see the common sense of the distinction between the two cases - sons shouldn't really be moaning at their fathers anyway, should they?



• Intention to create legal relations. Some would-be contracts are not because they are deemed not to be seriously intended. Promises made in jest and anger can come under this. It does of course depend on the context and facts. A pay rise sought and promised in the jollity of the office party might not be a contract when if it talked about in the office it would be. I once got my daughter to sign a homework contract supported by the valuable consideration of certain privileges. Apart from the fact that contracts with minors are generally not enforceable anyway this would probably also fail the intention to create legal relations test, although she didn't know and I didn't tell her of course on either count.



• Finally in these key principles, some contracts have formalities that have to be abided by to make them enforceable. The most common one is to be in writing. It is always best to have a contract in writing anyway, as a matter of evidence.

Here endeth the lesson on contracts for the uninitiated. I hope you found it useful.

SLANDER AND PASSING OFF - THE GROUCHO MARX WAY

Between November 1932 and May 1933, victims of the Great Depression could cheer themselves up a bit by listening to the brilliant wit of Groucho and Chico Marx on the radio posing as attorneys at a small law firm in the States. The firm was called Flywheel, Shyster and Flywheel. Groucho was the eponymous Flywheel and there was in fact no Shyster in the firm, Chico playing Flywheel's assistant, Ravelli, to exploit his stage Italian accent. In fact the show was originally entitled Beagle, Shyster and Beagle but following the airing of the first episode a New York attorney called Beagle filed a lawsuit for $300,000 alleging his name had been slandered and that its use was damaging his business and health. He also claimed that people were calling his firm and asking "Is this Mr Beagle?"When he answered "Yes", the caller would say, "How's your partner, Shyster?"

The claim by Mr Beagle raised a couple of legal issues. Firstly, slander. Slander is a sub-division of defamation, which broadly is a publication which reduces someone's reputation amongst right-thinking members of society, libel being the written and slander the oral publication (actually as this was a recording I think it was actually technically libel). There is no need to prove intention to besmirch. I doubt Groucho and Chico or the programme makers had ever heard of Mr Beagle. Here however the defamation alleged was somewhat indirect i.e. that the programme had the effect of associating Mr Beagle with a shyster, a corrupt lawyer. I have no idea of Mr Beagle's pre-existing reputation as a lawyer but we must assume it was good or he would not have risked the lawsuit at all (plenty of celebrities have fallen for that trap: Johnathan Aitken, Oscar Wilde to name two). In addition, Mr Beagle might have been claiming any an action known as 'passing off', namely that his law firm had been confused with the one in the programme, to the detriment of his, but if so it is difficult to see how this would work since the radio one was clearly fictional. It is not a defence to say that the defaming statement was a joke but nonetheless it would have been interesting to see the outcome if this had ever come to trial - would right-thinking people (even those who were his clients) really think that Mr Beagle's firm was being portrayed in some way on the programme so as to link in their minds that he had a partner who was a shyster? It seems an action too far, but the producers and sponsors (who were in fact an oil company, Standard Oil) panicked and so Beagle, Shyster and Beagle became Flywheel, Shyster and Flywheel, a much better name anyway. The next episode explained that Groucho's character had divorced and resorted to his 'maiden name' (perhaps one of Groucho's little jokes in itself).

Groucho was no stranger to intellectual property law. On another occasion he did not back down. When Night at Cassablanca was being completed for release in 1946, Warner Brothers' legal department threatened legal action, presumably this time for breach of copyright, saying that the film's name was too similar to their film Cassablanca released four years earlier, starring Humphrey Bogart and Ingrid Bergman. The wittiest of men sent a typically brilliant Groucho style letter in response: 'You claim that you own Cassablanca and that no one else can use it without your permission. What about ' Warner Brothers'? Do you own that too? Professionally we were brothers long before you were'. Warner Brothers nonetheless persisted and insisted on seeing the storyline. Groucho responded by sending them a plot in which he would be playing 'Bordello, the sweetheart of Humphrey Bogart'. At this point, Warner Brothers gave up.

A blog entry on the Marx Brothers and the law gives me the excuse to mention what I think is one of the cleverest comedy exchanges ever written which is when Groucho and Chico argue about contract terms in Night at the Opera. This contains the immortal punchlines:

Groucho: That's in every contract. that's a sanity clause

Chico: Ah you can't afoola me. There ain't no Santa Claus.

SILLY STATUTES

On a more light-hearted note, I thought I would mention a few laws that have been on the statute book for a while which have perhaps outlived their original purpose. One such is the Servants Character Act 1792 , still alive and kicking. The preamble to the Act says it all: Whereas many false and counterfeit characters of servants have either been given personally or in writing by evil disposed persons pretending to be the master....of such servants. And whereas the evil herein complained of is not only difficult to be guarded against, but is also of great magnitude and continually increasing, and no sufficient remedy has hitherto been applied..'. The Act made it an offence to impersonate a master presumably because there were a lot of bad servants out there. Today we are more likely to be exercised by the bad quality of the master/employer than that of the servant/employee but nonetheless this quaint anachronistic law remains. Another one in a similar vein is the Disorderly Houses Act 1751 which addresses 'many subtle and crafty contrivances of persons keeping bawdy-houses' , in particular the mischief of not being able to tell who the true owner or keeper of such establishments might be so as to hold them responsible. This Act therefore provides that anyone who seems to have some control is liable (thus presumably encouraging further disorderly behaviour as no one would want to be seen to be in control). Coming more up to date there is section 85 of the Public Health Act 1936 which deals with 'cleansing of verminous persons and their clothing' and provides that a local authority may remove a 'verminous person' to a 'cleansing station' and detain him and effectively strip him of his clothing without his consent if a court deems it necessary that 'he or his clothing should be cleansed'. Finally in this category is the Hypnotism Act 1952 which provides for licence conditions for the conduct of public hypnotism, brought into play long before TV hypnotists became the rage. Perhaps this statute has more relevance today than the others and may not be such a silly statute although it certainly doesn't prevent us seeing a lot of silly (hypnotised) behaviour on the telly.

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12 TIPS ON HOW TO COMPLAIN

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.

· 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 and it should be brief and to the point
· 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 loses 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, marked 'complaint' and that 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. He/she should spot if there are any unenforceable exclusion clauses. 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!