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.

Pandemic Information

For up to date information on the current Swine Flu pandemic please visit the following website;
http://www.pandemicinfosite.com

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!

HIGH HEDGES (including specimen letter of complaint to neighbour)

High hedges have been the source of much litigation. The main reason is that there is a clash of interests: one neighbour wants more privacy so grows his hedge height, the other neighbour wants light so wants to reduce the hedge height. The position in common law is that although you occasionally see an express right to light given in deeds, such a right is rarely implied in law, and where it is it is usually in a city environment where tall buildings are in close proximity and certainly not in your average domestic property context. You can take action in other situations which depend on the laws of nuisance or trespass e.g. if roots from a neighbour's tree cause subsidence you might claim damages and/or an injunction in nuisance, or if branches from a neighbour's tree overhang, they can be a trespass in your airspace and you can lop them off and put them over the fence. But at common law at least there is no general right to insist that your neighbour reduces the height of his hedge to give you more light to your property. However as a result of a number of fraught cases which might loosely be put under the heading of 'Battles of the Leylandii', the government enacted Part 8 of the Anti-Social Behaviour Act 2003 http://www.opsi.gov.uk/acts/acts2003/ukpga_20030038_en_1 . This gives Local Authorities powers to require the owner/occupier of premises to reduce the height of a High Hedge which adversely effects the reasonable enjoyment of a neighbour's property. The term High Hedge means a barrier to light and access formed wholly or predominantly by a line of 2 or more evergreens, and rises to a height of over 2 metres above ground level. If there are gaps in a hedge it may not qualify. If satisfied that there is a High Hedge as defined and that the neighbouring property is adversely affected, and upon completion of a complaint form and payment of the fee (currently £350, £175 for those on means-tested benefits), the Local Authority can issue a Remedial Notice requiring the owner to take steps to alleviate which usually means cutting the height of the hedge, although not to under the magic 2 metre threshold. Failure to abide by the Notice can result in a fine by the magistrates court, in effect making Leylandii abuse a criminal offence. However, the Council cannot accept a complaint unless parties have first tried, unsuccessfully, to settle a dispute without Council input. Evidence must be produced of such efforts. If you are the aggrieved person the kind of letter you might consider sending is as follows:

Dear Mr Hedges,

I enjoyed our talk the other day. I hope you enjoyed the lettuces from my patch!

I am sorry to write to you about what we spoke about then but I do need a response from you. I am only asking you please to discuss with me some lopping of your hedge by an agreed amount so as to allow some natural light to come into my living room, whilst preserving a height which will afford you all the privacy you reasonably require. Could we arrange another time to meet and discuss? I am advised that if we do not agree I can ask the Council to investigate which may result in their serving what is known as a Remedial Notice which would require you to reduce the height possibly as low as 2 metres. I do not want to invoke this procedure unless we absolutely cannot agree and I hope we can work together on this point.

Please give me a ring or email me. I look forward to hearing from you.

Yours truly,

......................................................

Happy hedge trimming!

Travellers' evictions

I have just completed a trespass case arising out of travellers squatting on some open land owned by my clients. I tend to get a number of these cases in the summer as travelling communities move around, perhaps looking for new work.

There are whole sections of the Civil Procedure Rules (CPR) devoted to the procedure for these kind of cases. The procedure can be quite fiddly and needs to be followed to the letter. There is a uniqueness insofar as the action is usually against 'persons unknown' and this has the consequence that there are peculiar rules for service of the court process. As far as open land is concerned service must be 'on a part of the land so that it is clearly visible' or by placing stakes in the land for the purpose of attaching the court process to this end. The latter was not possible in my recent case as the car park was tarmaced but we were able to affix to a nearby perimeter fence. The are rules about clear days of service before the hearing: 2 days (excluding weekends) is required for open (i.e. non-residential) land.

Courts can usually be persuaded to list these cases for hearing quite quickly, although a good relationship with the local court always helps! If the judge is satisfied that the procedure has been properly followed, the usual order is 'possession forthwith' but that is not the end of it as the order then has to be executed. The court bailiff has to be instructed by issue of a warrant. He will then visit to give formal notice of the actual eviction date to the trespassers. Usually the site is vacated just before this as the travellers move on elsewhere. I did have one case a few years ago when the same travellers moved to another client's site so I had two cases in quick succession!

It is very difficult of course to secure open land (which is why it is called open!) so although security measures will minimise the risk to some extent for farmers, councils and other major landowners, these type of cases are (literally!) something of an occupational hazard from time to time. My advice to landowners is see your solicitor immediately to get things going even if the travellers have agreed to leave in a few days as these promises regrettably are not always kept and precious time is lost. It does not mean that you should not keep a channel of communication going: rarely are travellers violent or abusive (whatever you may think of the morality of their actions) but they tend to know a certain amount about the law and may exploit your lack of it and particular any delay. They will often go, in short, only just before they have to go by law without being thrown off.

Nor is there any point in relying on the police. Whilst you should inform them to 'avoid a breach of a peace' their powers are limited. They can usually only rely on powers of persuasion, which causes further time to be lost, either because they do not have the powers, or where they do have the powers they lack the immediate resources. Unless there is some disturbance or damage, clear powers only exist for the police to move in when there are 6 or more vehicles and usually the problem is with smaller groups than this. http://www.urban75.org/legal/cja.html takes you to a ravers/squatters site where the police powers are summarised reasonably accurately as far as I have read it!

If you are the landowner, at no point take the law into your own hands and attempt force to evict. You could well commit a criminal offence yourself just by so doing. Nor should you do anything to put yourself at risk. This is surely a job for the experts.

Treasure Trove

Have you ever wondered what is the law relating to who owns hidden treasure which is later discovered? This is always a live issue, particularly in the summer months as enthusiasts trace over beaches with their metal detectors.

The law on this goes back to the time of Edward the Confessor, so is originally very much part of the ancient common law. To be treasure in the first place, objects had to be more than 50% gold or silver content. Next there had to be something called animus revocandi meaning it was hidden with 'intention to recover' (I love it when I can introduce legal Latin phrases - such a shame that modern law discourages them: they are so precise!). If this condition was established the Crown i.e. the state was deemed to own the treasure. Conversely, this meant that if the treasure was merely lost or abandoned it could not be treasure trove. There was then complicated law as to who could claim it: the original owner would still have the first ('superior') claim but subject to this the finder might be able to claim if he was legitimately on the land, but otherwise the booty fell to the landowner. In the case of the Sutton Hoo finds in 1939, close to home, they were not deemed treasure trove as there was no animus revocandi: it being presumed that as it was a burial site the treasure were not meant to be recovered, at least in this life! So Mrs Pretty , the landowner (I believe from the family who founded our rival firm, Prettys) had the best claim available, although she played fair and bequested the treasure to the nation in 1942. Incidentally as the essence of animus revocandi is hiding with intention to recover, if they true owner ever showed he could of course claim even if it was deemed treasure trove but this never happens as a fortiori so to speak they were dead long ago.

The Crown would pay a reward representing market value to the deemed finder. If there was a dispute about whether treasure was indeed trove a coroner's court had jurisdiction.

I recall that my old partner, Michael Sinclair, had a treasure trove case once under the old common law about who was entitled to what but sadly it is so long ago I cannot recall the facts of the case and he has now sailed off on his boat round the world so unfortunately I have no way of prompting my memory which is a shame.

Common law of a thousand years was changed by the Treasure Act 1996. The definition of treasure itself is changed. The new definition is complicated (statutes always complicate things). The Act can be found at http://www.opsi.gov.uk/acts/acts1996/ukpga_19960024_en_1 if you wish to see it in full but suffice to say here that treasure is now not just works containing gold and silver but also some works designated by the Secretary of State as of outstanding historical, archaeological or cultural importance' (prehistoric finds have been so designated). Any hidden treasure so defined now - even if lost or abandoned with not intention to recover - belongs to the Crown if the true owner is not around. As before the coroner must be informed of finds - it's an offence not to do so - and has jurisdiction by inquest over treasure trove. The Secretary of State for Culture and Sport (more power to Andy Burnham) decides whether to transfer to the Crown i.e. put in a museum, and the reward, which can now, to reflect the sad demise of our old friend animus revocandi, be split between finder and landowner.