http://www.silvermansherlikerblog.com Mon, 11 Feb 2013 10:34:17 +0000 en-US hourly 1 http://wordpress.org/?v=4.1 Accountability:Who Cares? – A Personal View http://www.silvermansherlikerblog.com/accountability-who-cares http://www.silvermansherlikerblog.com/accountability-who-cares#comments Sun, 10 Feb 2013 18:33:36 +0000 http://www.silvermansherlikerblog.com/?p=781 scandal-headline

What a tumult of hoary, institutional scandal has burst upon this country in recent times.

In the bosom of the Mother of Parliaments, the mother of an expenses fraud. At News International, endemic and management-endorsed phone hacking. At the BBC, and elsewhere, cover-up, or at least the turning of an institutional ‘blind eye’, to the worst excesses of moral depravity and exploitation.

Now, as the nation tries to come to terms with the grotesque premature mortality rates recorded at the NHS Mid-Staffs Hospital Trust (and, it is thought, at least 5 other NHS Trusts), the journalistic vocabulary of ‘accountability’ has reached a new crescendo.  This vocabulary is imprecise, retributive and emotive, but nevertheless forms the predictable lyric to a thousand wailing voices that clamour for ‘justice’ in a swelling and macabre ululation that novelist, Alistair Maclean, would probably have referred to as a ‘threnody of despair’.

Systemic failure, double standards, institutional apathy, corporate secrecy, official corruption.  Who would have thought old Albion would have had so much blood in it?

It has rather less now.

StaffsignIt’s a scandal. It’s a crime. Or is it?

Who should be ‘accountable’ and to whom, and how, should they ‘account’?

The failure of an institution such as an NHS Foundation is only a ‘systemic’ failure because the responsibility for the failure is spread, and, in some cases, one must suspect, is deliberately syndicated, throughout the entire organisation.

“Who’s in charge?” was the first question that Florence Nightingale would ask upon arriving at the front-line hospitals in the Crimea.

Good question. If no-one is in charge, no-one is accountable to anyone. Convenient when things go wrong.

It is difficult to level a legal sanction at ‘systemic’ failure precisely because we are asked to believe it is the failure of everyone, and by virtue of that fiction, of no-one in particular.

But if every part of an engine has failed, the engine as a whole must be repaired or replaced; it is no use just changing the oil, or indeed, changing the driver.

constitution_logoThat this is all wrong is self-evident.  The Francis Report thinks this is wrong. Jeremy Hunt, Secretary of State for Health, thinks this is wrong and is now openly voicing the need for a criminal investigation of those responsible for the deaths at Mid-Staffs. Experience tells us that only a legal sanction that potentially hits the individual in the pocket, or results in individual criminal liability will stop the rot.

….1200 premature hospital deaths in 4 years, for Pity’s Sake!

It is difficult to see how a contrary view is tenable.

If all have failed, then all must be held to account, and such current legal sanctions as are available must be brought to bear, with granular rigour, against all who have fallen short of the basic standard of care required by the duties, for the reasonable discharge of which they have been reasonably, in some cases, more than reasonably, remunerated.

At this point, a quick scan of the NHS Constitution is instructive.

Never was there such an elaborate hyperbole of rights and duties.

Principle 7 of the over-riding principles governing the NHS is:

The NHS is accountable to the public, communities and patients that it serves”.

Section 3(b) (Staff Responsiblities) intones:

You have a duty to accept professional accountability and to maintain the standards of professional practice as set by the appropriate regulatory body applicable to your profession or role.”

Here are some of the basic ‘rights’ enjoyed by the recent victims of the level of care at Mid-Staffs and elsewhere:

    You have the right to be treated with a professional standard of care, by appropriately qualified and experienced staff, in a properly approved or regulated organisation that meets the required levels of safety and quality.You have the right to expect NHS organisations to monitor, and make efforts to improve, the quality of healthcare they commission or provide.
    You have the right to be treated with dignity and respect, in accordance with your human rights.
    You have the right to have any complaint you make about NHS services dealt with efficiently and to have it properly investigated.

So many rights………..so few effective sanctions for breach of those rights.

Let those individuals involved in organising and providing healthcare services at Mid-Staffs and elsewhere, remind themselves of the following ‘values’ that, by contract and by vocation, they espouse, and let them ask themselves whether they consider they should bear any personal responsibility for what has gone wrong there:

NHS Constitution
What is the point of such an ostentatious deference to the principle of accountability and basic standards of medical care, when there is no clear, swift and unambiguous legal sanction available to enforce the rule?

Without individual penalty for such grievous failures as have manifested itself over a prolonged period at Mid-Staffs, it is all just so much window-dressing…a tale told by an idiot, full of sound and fury, signifying nothing. ‘Come inside, wash yourself, feed yourself, thirst, suffer and die alone in your own filth’, would be a more fitting charter.

The NHS and its insurers can absorb any amount of civil liability. Nothing will change until the principle of individual accountability, both civil and criminal, is clearly enunciated and pursued.

Against whom?

lawcorts

Criminal liability for clinical negligence is a subject that has exercised jurisprudential minds for decades and continues to do so. The basic principle seems to be that a medic who is ‘grossly negligent’ may incur, not only civil liability and professional sanction, but also criminal liability for manslaughter. The facts are always paramount.  A momentary, but lethal, mistake in the operating room, may not amount to a criminal act. However, deliberate or reckless, behaviour that leads to death can give rise to criminal liability.

Against this principle, how should we judge doctors, nurses and ward staff who, deliberately, wilfully, and continuously, deprive patients of basic care and assistance to the point of death, where no death should have occurred, often not only against the constant imploring of the patient, but also the voluble complaints and protestations of the patient’s entire family.

Criminal negligence? I’d say so. Seems like more than enough grounds for prosecution there, to me.

And where  such ‘carers’ are regulated by the General Medical Council and the Nursing and Midwifery Council, why have the disciplinary committees of these professional bodies not hauled up those so flagrantly breach of their professional codes of conduct  ‘en masse’ and, er, yes……held them professionally accountable?

And what about the governors and the directors of the trusts responsible for delivering the rights and standards set out in the NHS Constitution? Should they not be individually financially liable for damages for breach of trust in their capacity as trustees. The principle set out in section 31 of the Trustee Act 2000, that a culpable trustee has a right to be indemnified from the resources of the trust, has its limits. Surely, that principle of indemnity, should not apply to any trustee who deliberately, wilfully, or simply recklessly, flouts the care standards that he or she is entrusted to uphold.

If directors and managers can be prosecuted personally and receive custodial sentences and substantial fines for failing to maintain safety standards withing the workplace contrary to the Health and Safety at Work Act why should not the governors and directors of NHS Foundation Trusts, and those bodies whose role it is to monitor such Trusts, also be liable to criminal prosecution for breach of statutory duty for allowing standards to fall so low that patients are needlessly dying under the care of the institutions for which they are responsible?

My lecturer in the Law of Tort at Cambridge, the late, lamented ‘Mickey’ Dias, QC, Emeritus Professor of Magdelene College, a very precise and rigorous mind indeed, opened and, in the same breath, concluded his first lecture on Tort with the words: “First, there is a duty of care. Then there is a falling short of the duty of care. That’s really all you need to know about it”. I think he would not have needed to elaborate beyond these simple words to encapsulate the meaning of ‘accountability’.

notmyfaultWhilst there is no merit in ‘scape-goating’, those individuals responsible, in whole or in part, for causing death by deliberate or reckless neglect, should be prosecuted and held to account to the fullest extent of the criminal and civil law and to the fullest extent of their various regulatory bodies.

Where it is a matter of life and death, the prime responsibility must be individual, not corporate or institutional.

Let’s get rid of the ‘systemic failure’ defence and start bringing individuals to book.

It’s your fault.  It’s my fault.

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Silverman Sherliker Launch ‘Red Snow Day’ Cull Appeal http://www.silvermansherlikerblog.com/silverman-sherliker-launch-%e2%80%98red-snow-day-cull-appeal http://www.silvermansherlikerblog.com/silverman-sherliker-launch-%e2%80%98red-snow-day-cull-appeal#comments Fri, 16 Dec 2011 17:59:19 +0000 http://www.silvermansherlikerblog.com/?p=757
"I wish I was a lawyer in a Big City firm...."

"I wish I was a lawyer in a Big City firm...."

The expression ‘Christmas clubbing’ has taken on a sinister new meaning this week as it has been revealed that several of the Big City law firms have outsourced their now annual cull of PUPs (Partners who Under-Perform) to mercenary gangs of Canadian seal clubbers from the Gulf of St Lawrence as a further cost-saving measure.

The opportunistic gangs are being paid handsomely for spiking literally scores of surprised and defenceless PUPs at their desks as they stare wide-eyed into their Inboxes.

Akiller

Those that do not get clubbed are being noosed in a particularly dark technique known as ‘de-equitising’.

“Although it looks brutal, it is really quite quick and humane”, said one grateful survivor.

…but to cast aside and kill such noble and worthy creatures in this cynical way in the name of ‘profits per partner’ is surely short-termism gone mad.

So to draw attention to this shameful and pernicious practice and to provide continuity of employment for its unfortunate victims, we have launched the Red Snow Day Appeal to draw attention to their plight and to seek to provide them with the possibility of a home in the New Year.

asantapcs

City lawyers were asked to wear something red-and-white to demonstrate their support for the Appeal and, as only lawyers can do, they really got into the spirit of Christmas by donning festive Father Christmas outfits at their PCs.

AclimbingIronically, these self-same supporters were soon after asked to pack their Santa bags and were obliged to leave the building fast by any available exit in order to avoid the ministrations of the savage Christmas clubber gangs.

So if you know of a PUP who has taken a Christmas clubbing this year please tell them about the Red Snow Day Appeal…

…..and ask them to get in touch with us immediately.

apply now

(PS: Any head-hunters or recruiters responding to the Appeal will be required to donate their entire commission to the Red Snow Day Appeal– after all, it is Christmas.)

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Join the News Of The World Employee Action Group – Register Your Interest Now! http://www.silvermansherlikerblog.com/join-the-news-of-the-world-employee-action-group-register-your-interest-now http://www.silvermansherlikerblog.com/join-the-news-of-the-world-employee-action-group-register-your-interest-now#comments Fri, 08 Jul 2011 11:04:58 +0000 http://www.silvermansherlikerblog.com/?p=719 NEWS OF THE WORLD EMPLOYEE ACTION GROUP

JOIN THE NEWS OF THE WORLD EMPLOYEE ACTION GROUP!

We have recently been contacted by a number of very concerned News of the World employees …or should we say ex-NoTW employees.

Rocked by yesterday’s shocking developments, News of the World employees are now not only acutely concerned for their immediate future, but are also distressed about the potential long term career damage that may suffer by being, as they see it, unjustly tainted by the acts of others.

News of the World employees are angered that they are effectively being scape-goated and punished when they have done no wrong.

Since they do not consider themselves to be at all responsible for the circumstances giving rise to the closure of the title, they are concerned to investigate the potential to claim Stigma Damages equivalent to those awarded in the BCCI litigation.

In response we have set up the News Of The World Employee Action Group, to provide co-ordinated and affordable support, advice and guidance for all News of the World employees through what will certainly be a troubling and distressing time for all concerned.  The initiative has been featured in The Lawyer and in The Financial Times.

Notw1          financial-timeslogo       

If you are a News of the World employee, please register your interest now.

news-of-the-world

For an initial confidential conversation, without charge, please contact either:

Martin Donoghue       mdd@silvermansherliker.co.uk
Nicholas Lakeland     
ncjl@silvernamsherliker.co.uk
Victoria Russell           vjr@silvermansherliker.co.uk

Tel: 020 7749 2700
www.silvermansherliker.co.uk

 

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PC World – Repair Policy, Customer Service and the Sale and Supply of Goods to Consumers Regulations 2002 http://www.silvermansherlikerblog.com/pc-world-repair-policy-customer-service-and-the-sale-and-supply-of-goods-to-consumers-regulations-2002 http://www.silvermansherlikerblog.com/pc-world-repair-policy-customer-service-and-the-sale-and-supply-of-goods-to-consumers-regulations-2002#comments Sun, 12 Jun 2011 17:24:51 +0000 http://www.silvermansherlikerblog.com/?p=705 pcworld and the sale of goods actI have had a run in with PC World.

They will not replace a faulty computer.

PC World, I note from my internet research today, has been described by others as ‘Like Hell, but with worse customer service.’

I cannot say whether this is true as I have not yet had the pleasure  of visiting Hell, but my experience of PC World in Charlton has reduced me to an infernal despair.

It appears from my web research today that I am not alone in my despair. In the hope that it may assist others, here is the text of my letter before action I have crafted to the MD of DSG Retail who own PC World, and, I believe, Currys.

Take due note that under the Sale and Supply of Goods to Consumers Regulations 2002 consumers have a RIGHT to require EITHER repair or replacement…so do not be fobbed off with a compulsory repair policy.

PC World is not so PC, after all, in my experience.

So here goes….

——————————————————————————————————————————

Mr Stephen Campbell
Managing Director
DSG Retail – PC World
Maylands Avenue
Hemel Hempstead,
Herefordshire HP2 7TG

Dear Mr Campbell

PC WORLD – CHARLTON STORE- FAULTY TOSHIBA LAP-TOP
SATELLITE C660-130 | PART No: PSC0QE -00500CEN  |  SERIAL No: XA295426K

We represent Mr C J Sherliker, who purchased the above Toshiba lap-top from your store, PC World Charlton, South London in December 2010 as a Christmas present for his son who needed, and still needs, the lap-top in connection with his studies.

It has never worked properly.  It will not turn on. It never reaches the end of it boot up cycle. The machine turns itself off after 30 seconds. The screen remains black.

Our Client has twice requested an in-store credit and twice been refused.  We regret having to trouble you in this matter. You, no doubt, and we, have better things to do, but if you could do what you can to bring some reason to bear in this matter and ensure that PC World complies with its plain statutory obligations, it would be appreciated.

The legal position is simple. Under the Sale of Goods Act 1979, as amended, our client has a right to be compensated if the goods do not conform to description, or are not fit for purpose or are not of satisfactory quality. PC World, as seller, has an obligation to replace or repair the goods within a reasonable time. You have twice failed, on request, to replace the goods and, further, you have failed to repair the goods within a reasonable period time. Further, under section 48A(1) of the Sale and Supply of Goods to Consumers Regulations 2002 our client, dealing as a consumer, has a right to require PC World to repair or replace the goods. Our client now exercises that right. Unless the goods are replaced or a full refund offered within 14 days from the date of this letter our client will have no alternative but to commence proceedings. Sadly, this appears to be the policy of your company. We would observe that it  is not a winning policy.

The facts of the case, should you be interested, are as set out below.

The machine will not turn on. In January 2011, the machine was returned to store and a replacement machine, or a refund, was requested.  In contravention of our client’s rights under  the Sale and Supply of Goods to Consumers Regulations 2002, the Service Desk at PC World, Charlton, declined to do either, and insisted that the machine was picked up by TechGuys to be checked and for the ‘fault’ to be ‘repaired’.

Our client asked to discuss the matter with the manager but was told that it would make no difference because the machine fault would still have to be investigated before the store would consider a refund. Reluctantly, our client agreed to this procedure. In retrospect, our client should not have agreed to this procedure. In doing so, he was acting reasonably and not insisting on his clear statutory right. Our client does now insist on his statutory right.

The machine was picked up from these offices on 25th January and returned some days later. The machine booted up twice but then reverted to the previous fault. It has not worked since.

On Sunday 12th June, the machine was again taken back to store. A replacement machine or a store credit was again requested. Again, contrary to our client’s right to an immediate replacement under the Sale and Supply of Goods to Consumers Regulations 2002, the Service Desk at PC World, Charlton, informed our client that, due to the fact that the recurring fault had not been reported within 7 days after the return of the machine from its previous services that it would have to be picked up by TechGuys yet again for investigation and repair. Such conduct on the part of PC World is, quite simply, illegal. Our client is no longer prepared to tolerate such treatment.

Given that the lap-top was manifestly faulty on sale and, further, that TechGuys had been given ample opportunity to remedy the fault but had signally failed to do so, our client understandably sought to insist on a replacement or  at least a full store credit. Contrary to our client’s plain statutory rights under the Sale and Supply of Goods to Consumers Regulations 2002, our client was informed by the instore Service Desk at PC World, Charlton, that ‘only TechGuys could authorise a store credit’ and invited our client to call them from the Service Desk phone. Our client did so and discussed the matter with TechGuys and with PC World Customer Service for over  45 minutes.

PC World Customer Service requested to speak with the Store Manager,  advising that a request for a store credit or replacement based on the fact that the machine was not of reasonably satisfactory quality within the meaning of the Sale of Goods Act 1979 was a matter for the ‘discretion of the Store Manager’. We regret to inform you that the discretion of the Store Manager at PC World does not prevail over the will of Parliament. The Assistant Store Manager came to the phone and discussed the matter with PC World Customer Service. He then went to fetch the Store Manager who introduced himself as Vincent but refused, as a matter of company policy, to provide our client with his surname.

Notwithstanding that the machine was faulty on sale and, further, that TechGuys had failed to remedy the fault, the Store Manager, Vincent, refused either to give a store credit or a refund, contrary to our client’s statutory rights under the Sale and Supply of Goods to Consumers Regulations 2002. Given the delay in reporting the failed repair, he said, he must insist that the machine should again be returned to TechGuys for  further investigation and repair.

We would draw your attention to the fact that this machine was faulty when sold and, very soon after prompt investigation and repair by TechGuys, as agent for PC World, it developed exactly the same fault again. It is quite obviously not of satisfactory quality and unfit for purpose and, at the date of writing, remains so. PC World has been given a reasonable opportunity to repair it and has failed in this endeavour.  In these circumstances, we find it difficult to comprehend why the Store Manager, Vincent, did not immediately agree to replace the machine or provide a store credit but he did not. Instead, he invited our client to pursue his statutory rights by means of court proceedings. The customer service policy of PC World amounts to ‘See you in court’.

We would like to place these facts on record and also the fact that, again, our client has arranged for the lap-top to be picked up on Tuesday 14th June for ‘repair’ by TechGuys. Our client does so without prejudice to his statutory rights in this matter.

To summarise. Our client bought a Toshiba lap-top that did not work from PC World, Charlton.  Without prejudice to our client’s right to have the machine replaced under the Sale and Supply of Goods to Consumers Regulations 2002, our client provided PC World with an opportunity to ‘repair’ the machine. They failed. Our client has on two previous occasions requested a refund or an in-store credit but has been refused on each occasion.

Our client now seeks a full cash refund of the price paid for this lap-top pursuant to his rights under the Sale and Supply of Goods to Consumers Regulations 2002, and will if necessary pursue formal proceedings to ensure that this is done.  In any such formal proceedings, we will be calling the Service Manager, the Assistant Store Manager and the Store Manager from PC World Charlton to give evidence and will be seeking an award of costs on an indemnity basis.

In those circumstances, we will also be bringing the matter to the attention of the local Trading Standards Office with a full report of the facts of this case and a request that the outright and determined manner in which PC World seeks to avoid its statutory obligations should be investigated forthwith.

We will revert to you in due course as to how we intend to proceed in this matter but, if in the meantime, you could intervene to bring an end to this tiresome charade and provide our client with a Toshiba lap-top that actually boots up and functions as a lap-top, it would save us all a lot of time and money.

CC: The Manager
PC WORLD,
Unit E, Stone Lake Retail Park
Charlton
London SE7 8LU.

—————————————————————————————-

I will let you know what transpires…..

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WatNext Bank plc and the ABSURDA Regulations 2010 http://www.silvermansherlikerblog.com/watnext-bank-plc-and-the-absurda-regulations-2010 http://www.silvermansherlikerblog.com/watnext-bank-plc-and-the-absurda-regulations-2010#comments Sun, 29 Aug 2010 16:04:54 +0000 http://www.silvermansherlikerblog.com/?p=690 absurdaEnough is enough.

I have drafted a new Act of Parliament to save us all from any more imbecility of the part of banks, local authorities, airports and other such organisations who seem to regard our time as theirs to waste.

 Administrative lunacy seems to have become a defining national characteristic and its got to stop.

Welcome to the Administrative and Banking Services(Unreasonable Requests and Delays)Act 2010…or ABSURDA 2010 for short.

Time is very precious. Mine is. Yours is. It’s illegal to waste someone’s time with unsolicited mail and spam. So what about absurd telephone loops, crazy administrative requests, unnecessary forms that take hours read and days to complete, inexplicable airport delays, bureaucratic imbecility of Daliesque proportions?

Enough is enough…it has to stop now before we all go totally mad.

It was last Monday morning that I realised that what we need is a new Citizens Charter to stop the rot.

On my way out of the house at 7.30am, I opened a letter from WetNast Bank. It was a long, official-looking letter asking me to verify my bank account and direct debit details for a charge card, the sixteen digit number of which I didn’t recognise.

I spent the next 15 minutes checking the numbers on all my cards that could possibly be relevant. Not mine. I ran the gauntlet of my wife’s handbag(with her express permission, of course) and after another 10 minutes concluded that it wasn’t any of her cards either.

Alarm bells started to ring. I inspected the letter closely. What a great scam it could be to get people to confirm their account details to some fraudster just waiting at the end of the line with notebook and pencil to the ready.

I had already missed my slot in the rush-hour traffic so I decided to ring my bank using a number different to that given in the letter to verify that the letter was genuine. I listened to the inevitable 5 options, none of which applied so a plumped for Option 5 (“For any other questions choose 5″). You just know that this is the least important option for the bank and that the call will now be routed to a mizzen hut in the back end of beyond and will only be answered when the occupant has come in from feeding the chickens, washed her hands and made a cup of tea. So I was forcibly ‘held in a queue'( this will be illegal under ABSURDA 2010) and, after about 10 minutes, I was rescued fom my solitary dangle by a voice recognisably of the human species that agreed that the letter “was a bit fishy” and that I should call the fraud line the number of which I was then given.

I called. 

By now, I was now about 35 minutes into Hell.

I could only keep going.

I traversed the inevitable ‘options’ offered by the fraud line, none of which was remotely relevant. I opted for Option 4(“For any other question please press 4″). I meekly joined the end of the queue as the call was patched through to the mizzen hut at the end of Stella Gibbon’s garden.

Eventually, a brusque Scot asked me how he could help. I explained about the letter. He went through the usual security checks – mother’s maiden name, what toothpaste did your Great Aunt May use etc. The card number, it transpired, after some lengthy silences and key-board tapping, had indeed been issued in my name. “Well, I haven’t received it, so what do I do now”, I enquired. I would have to be put through to ‘Customer Services’ (lots of laughs) who would be able to advise me.

Another interminable wait. I again explained about the letter asking me to verify my private bank details for a card which had apparently been issued in my name but which I hadn’t received. “Oh no”, said the Voice, “You won’t have received it yet because we haven’t sent the card out yet.” Stunned silence. “Now just let me get this right. You have written to me asking me to verify my bank account and direct debit details for a card number that I do not recognise..because you haven’t issued it yet. Isn’t that a bit…well, daft?”

“Yes, I know”, said the Voice.

“And aren’t you going to get thousands of calls from confused and suspicious customers up and down the land?”

“Yes, I know”, said the Voice.

It was Monday morning and I had wasted over an hour of my time on an imbecilic wild goose chase dreamt up by WetNast Bank.

I have sent them a bill for £265 plus VAT. I expect it to be paid.

….and I have drafted the Administrative and Banking Services(Unreasonable Requests and Delays)Act 2010  that will not only make this kind of institutional inanity illegal, but will also confer upon the individual an automatic right to compensation for the time wasted by such corporate and administrative idiocy. We will all make a bomb out of this.

Section 1 reads:

“If a designated person makes of any relevant addressee a qualifying request and by reason of any act or omission of the designated person:

(i)  the relevant addressee does not have the information reasonably necessary to answer such qualifying request,or

(ii) the time necessary to answer such qualifying request is unreasonable, unconscionable or disproportionate, or

(iii) the designated person does not, at the time of making the qualifying request, provide an adequate explanation of the reason for the request and an estimate of the time expected to be necessary to answer such request and demonstrate that it is reasonable and proportionate, or

(iv) the time estimate provided by the designated person, or the reasonable time if shorter, is exceeded,

the designated person shall have committed an offence and the relevant addressee shall be entitled upon application in writing to the designated person to receive financial compensation.”

Designated persons will include banks and other financial institutions, local authorities, NHS trusts, airport authorities, schools and universities, the Police and all government authorities.

Simple.

Such an Act of Parliament will save millions of hours of wasted time in this country, will help dig us out of recession, will lead to an immediate improvement in telephone service, will stop compulsory,mindless queuing and telephone loops and act as a much-needed restraint on administrative and corporate imbecility and incompetence.

And I commend this Bill to the House.

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Contesting a Will – Web-site Design Rules OK http://www.silvermansherlikerblog.com/contesting-a-will-web-site-design-rules-ok http://www.silvermansherlikerblog.com/contesting-a-will-web-site-design-rules-ok#comments Tue, 06 Jul 2010 09:58:39 +0000 http://www.silvermansherlikerblog.com/?p=676  contesting a will

As an experiment, we recently had our Contested Probate Website – Contesting A Will  re-designed because the quality of the leads we were getting from our site, whilst prolific, left quite a lot to be desired.

Indeed, the old website was flatteringly described by one of our probate team as ‘tacky’.

There is no doubt whatsoever that following the re-launch last week the quality of the leads this site has generated is hugely improved.

There is a school of thought that web-site design does not matter and that your advertising can be the child of  creative chaos and can look like a ‘car crash’ without it affecting your results.

We no longer subscribe to this view.

Chris Sherliker      cjs@silvermansherliker.co.uk

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Accelerated Possession – You Blinked? http://www.silvermansherlikerblog.com/accelerated-possession-you-blinked http://www.silvermansherlikerblog.com/accelerated-possession-you-blinked#comments Sun, 27 Jun 2010 07:39:41 +0000 http://www.silvermansherlikerblog.com/?p=670 accelerated-possession

Re-possession of residential property has just got a whole lot faster with our new, fixed fee Accelerated Possession service.

Thats it.

You blinked?

You missed it.

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‘It’s an App, App, ‘Appy Day!’ http://www.silvermansherlikerblog.com/its-an-app-app-appy-day http://www.silvermansherlikerblog.com/its-an-app-app-appy-day#comments Sun, 20 Jun 2010 10:14:47 +0000 http://www.silvermansherlikerblog.com/?p=599 The Law is an App.

At least, trade mark law now is…

Three days ago, we launched our first mobile application for iPhone and Blackberry:  NameSearch TM Legal.

namelogo+

If you are reading this on an iPhone or BB, you can download the App free from the above link.

You can also read the review in the AppStore.

namesearch for iPhoneNameSearch TM Legal helps you protect your trade marks, business names, product names, logos and brands and is designed as a resource tool for brand consultants, creative agencies, designers, NPD specialists, marketing executives and entrepreneurs.

In addition to a constantly-updated feed on what’s happening in the world of brands and marks, you can also request free trade mark search reports on the legal availability of business and product names and free legal advice on names, logos, trade marks and brands from the IP Team at Silverman Sherliker LLP.

You also have the full text of the UK Trade Marks Act 1994 at your fingertips.

The journey from the dawn of the initial idea to its eventual launch in the Appstore has been a long and formative one and, like most journeys, it has taught me quite a lot.

This is what I have learned.

Lesson 1: When you want to generate a new idea …go large.

There are a lot of iPhone applications about trade marks and ‘matters legal’ but a lot of them just replicate legal statutes and provide very limited functionality. They are stuffy. They are basically just adverts.

I wanted to create a really useful tool for anyone involved in branding, trade marks, name creation, design, NPD or business start-ups. Something that would enable busy creatives and entrepreneurs to clarify the legal availablity of new trade marks, brands and designs ‘on the hoof’, as it were …in a taxi, at the water-cooler, from the white-hot centre of the brain-storming session. In short, I wanted it to deliver  something of real value for the creative and entrepreneurial community.

name+stars

So what about an app that enables anyone in the world to request a free trade mark search and get an initial professional assessment of the results from their iPhone or Blackberry?

Okay. That’s not bad.

But what if people could also request free legal advice on branding and trade marks as well and request a fee quote for the registration of their chosen mark at the same time?

Better.

What about logos, graphics and designs? Could people take a quick snap of the logo or graphic with the iPhone camera and upload it from the app into our CRM database for immediate legal evaluation? ……er, yes….

name+first screen

So I think this is the most important part of the process.

Get excited. Ask yourself what would be the best thing you could possibly create…and then keep adding stuff.

Be demanding of yourself …and keep demanding.

Keep on asking yourself …. ‘Why not?’ …and ‘What if?’

So could we have improved on the first version of the app that we submitted to Apple?

Yes, we most definitely could. In fact, it was the initial and disappointing rebuff from Apple (more below) that drove us on to produce what we now think is a really fantastic application.

We hope that you will agree.

Lesson 2: Choose a good, professional iPhone App developer

Come on, guys! …We are lawyers, not tekkies!

Don’t skimp on the choice of a good developer.

Don’t just settle for the cheapest offer on eLance from Timbuktoo.

It makes much more sense, in my opinion, to pay the premium for having a good local developer who you can brief face-to-face and who is reasonably near to home when a few home-truths need to be shared. They will have a better understanding of your business and what you are trying to do if you can discuss the project with them across a table and they will probably come up with a much better look-and-feel for the new application as a result.

Include them in the conversation right from the beginning. What seems impossible and expensive to a work-a-day lawyer suddenly appears to be do-able.

I can whole-heartedly recommend my friends Ankush and Jason at PolydiamInfosoft. They are extremely dedicated and client-centric folk and showed great patience and fortitude in bringing this new app into being.

Great guys.

Lesson 3: (the big one) Never Give Up.

My Twitter friends know that this is a recurring Churchillian theme of mine and will forgive me. But there will be bumps in the road in any project. Sometimes they are big bumps that throw you off the road completely. We ended up in the proverbial ditch in March on this one:

namesearch status

The gestation period of this app has been 6 long months rather than the intended 2 months. The idea was conceived early one morning in December 2009, whilst shaving. I get a lot of good ideas whilst shaving. Developers were appointed and briefed in late December and we anticipated a launch in February. In fact, it was March 2010 before we were first in a position to submit the fledgling app to Apple Inc for assessment for inclusion in the AppStore.

Now, Apple Inc became very skittish in March 2010 for some unknown reason and suddenly started rejecting perfectly good applications on the flimsiest of pretexts, at least this is what I have managed to glean from various sources.

In short, our application was rejected because it, and I quote, ‘did not make full use of the available iPhone functionality’.

Well, stuff you, Duckie!

We found ourselves in the proverbial ditch.

So we went back to the drawing board with our developers, who were as frustrated as were we, and we started to build an even better application.

We incorporated the full text of the UK Trade Marks Act 1994.

We built in an RSS blog feed so that we could now offer bloggers on branding and design a further outlet for their blog-posts. We included a Twitterfeed.

We refined the back-end CRM databases to enable us to communicate with our enquirers by email and by SMS.

We upgraded the graphics and revisited the screen designs and the copy.

We resubmitted on June 9th and were notified of the inclusion of Namesearch TM Legal in the AppStore on June 15th….and great was the celebration.

In its first 3 days, and without any advertising apart from a few tentative tweets on Twitter, we have scored 164 downloads of our new application worldwide.

namesearch stats

Interestingly, many of the initial enquiries are from Canada and the US so we will immediately be setting up a  referral conduit to our trade mark affiliates in those countries to handle those enquiries effectively.

NB: Don’t Miss Your Blog Opportunity

We are also looking for relevant blogs on marketing, branding and design to include in the application’s RSS feed so if you would like your blog included please do get in touch with me as soon as possible and we can help get you an increasing, targetted readership for all of your blog-posts.

Just email me at cjs@silvermansherliker.co.uk. We can include your blog in the Namesearch application within a few seconds and would be delighted to extend this courtesy to you. Don’t be shy!

May all your ideas be big ones.

I look forward to meeting you in the ditch.

(NB: NameSearch TM Legal has recently been updated for iPhone 4 and is available for download from the Appstore and from out new Trademark Registration web-site launched on 20th May)

Chris Sherliker

namesearch+cjs

@London_Law_Firm
cjs@silvermansherliker.co.uk
Tel:  +44  (0)20 7749 2700

Silverman Sherliker LLP, 7 Bath Place, London EC2A 3DR

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Synchronicity, Plum Pudding and the Twitterverse http://www.silvermansherlikerblog.com/synchronicity-plum-pudding-and-the-twitterverse http://www.silvermansherlikerblog.com/synchronicity-plum-pudding-and-the-twitterverse#comments Mon, 31 May 2010 15:27:57 +0000 http://www.silvermansherlikerblog.com/?p=583 Yesterday, I was taken by the notion that I should acknowledge my 9000th Twitter follower with a blog-post, whoever he or she …or it …may be.

Serendipitous? Risky? ….Well, yes. After all, it may be a nutter or a liberal, a poker or golf freak or indeed a twitterbot. In all probability it would be.

Nevertheless, the die was cast. The rule was set.

I resolved to blog on follower 9000 whoever he, she or it turned out to be. No tricks. No poetic licence.

It was to be a gesture intended as a thankful celebration of the glorious and provoking arbitrariness of the Twitterverse.

backstoppThe spotlight duly came to rest on @backstopp, of whom more later.

It could have been anybody.

 

In fact, it very narrowly missed being @GeneHunt of Ashes to Ashes fame  Hunt

(…”Now, that would have been one bastard of a blog-post – Eh! Bolly Knickers?”)

It would not have mattered who it was.

This is not to demean my blog guest, @backstopp. Heaven forfend!

It is simply to acknowledge that, in the Twitterverse, there is a law at play that seems to tolerate the most arbitrary of casual connections without impairing its own inexorable and constructive purpose.

It takes a while to realise that this is going on, but I can attest that it is so.

Indeed, if I was to be deliberately provocative I would say it really doesn’t matter what you tweet about, or with whom, you will soon be left ‘bouche be(acute)e’ by the network of coincidences and connections that will arise and be offered to you as if by some unseen hand. You cannot avoid them. That is why I am equally happy to engage in mad twitter burlesque or host virtual Twitter parties as I am to discuss serious matters legal. I have recognised that there is a law of synchronicity at play….and it is playful, but I believe the Universe as a whole is essentially playful so that does not surprise me much.

synchrjungAnd before I am inundated by a deluge of  ‘Law of Attraction’ tweets from the States, I would point out that it was Carl Gustav Jung who, in 1920, first coined the term ‘synchronicity’ to explain the frequent occurrences of ‘meaningful coincidence’ that he attributed to ‘an acausal connecting principle’.

Jung would have loved Twitter. 

He tells the story of a woman who was recounting to him her dream involving a golden scarab when there was a repeated tapping on his study window that turned out to be a large and very rare scarab beetle that was clearly intent on entering the room. Spooky.

Then there is the case of the French Romantic, Emile Deschamps, who claimed in his memoirs in 1805 that he was once treated to some plum pudding by a stranger, one Monsieur Fontibu. A decade later, Deschamps ordered the plum pudding in a Parisienne restaurant to be told that the last portion had just been served to another customer who turned out to be the same M. Fontgibu. Many years later, Deschamps was served plum pudding and related the previous coincidence, adding that all that was needed now was for Monsieur Fontgibu to appear. At that moment, the elderly Fontgibu entered the room.

This kind of thing happens all the time on Twitter, of course.

It is a truly synchronous playground where, so often, so tirelessly and so appropriately, amazing and potent coincidences are conjured up by the creative principle, seemingly out of the very primeval twitter-froth itself. 

You can go hunting for these connections. The point is that you do not need to. Jump into the twitterstream; let go; have faith and see where it takes you. That is all.

So what of @backstopp?

Well, they have a stupendous technology that every company or organisation whose staff use lap-tops and other mobile data devices should definitely know about. Did you know that over 10,000 lap-tops are left in London taxis every year? If that happened to you, all of your personal data, passcodes, files would suddenly be out there for anyone to exploit. Backstopp by Virtuity enables organisations and individuals to perform a remote deletion of data files on any lost or stolen PC, Laptop, PDA or Mobile phone utilising either the GSM (mobile) network, Internet or RFID. As soon as you realise your device is lost or stolen simply login to the BackStopp web console to securely delete all data on the device using US Department of Defence standards. Once your data is secured a detailed report will show what data was destroyed, the device’s last known location and even a photo of the culprit.
 
How good is that!

The coincidence is that I was talking about this very technology just a short while back with another good twitter friend of mine Mike Briercliffe ( @mikejulietbravo).

synchro2

Well, I say it is a coincidence…but on Twitter there is really no such thing.

Anyone fancy a party?

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Silverman Sherliker HR Services Launched http://www.silvermansherlikerblog.com/silverman-sherliker-hr-services-launched http://www.silvermansherlikerblog.com/silverman-sherliker-hr-services-launched#comments Thu, 27 May 2010 15:38:51 +0000 http://www.silvermansherlikerblog.com/?p=570  

Dave Thompson heads to head up Silverman Sherliker HR Services HR Expert, David Thompson, has joined Silverman Sherliker to head up Silverman Sherliker Specialist HR Services, a dedicated HR Specialist service

The service will provide front-line HR advice and resources to complement the legal services offered by the firm’s extremely busy employment team.  
 

Innovative Client Benefit

Senior Employment Partner, Nicholas Lakeland, explains how this innovative step will benefit clients:

Silverman Sherliker can now provide an integrated and complete HR Service thus assisting clients with practical advice and on site assistance whilst also being able to offer Employment Law advice as and when required. Our HR consultants are available to undertake regular weekly or monthly first-line human resources support on a retained basis or to deal with on one-off projects as may be required.    The services are flexible and can readily be tailored tosuit a client’s requirements.”

A Wealth of Experience

During his 23 years HR career with Barclays Bank, Dave Thompson has acquired a wealth of hands-on HR experience in successfully dealing with contentious and non-contentious HR-related issues.  Dave progressed through the branch network to Operations Management where he quickly gained a reputation as an effective troubleshooter, turning negative situations around through a combination of re-motivating employees and bringing good disciplines to the workplace. From the London Regional HR team, he progressed to Employee Relations Manager in Barclays’ Head Office and also spent two years as a Project Manager for Employee Development and was responsible for implementing Recruitment & Assessment Centres. 

Dave explains the service that he now heads up at Silverman Sherliker Specialist HR Services :

I am excited to be offering a seamless professional service to businesses of all sizes, backed by Silverman Sherliker’s legal expertise.  We offer a standard HR package to small, medium and larger employers.  Our range of services includes:
 
·        Absence Management
·        Guidance on issues involving incoming employment legislation
·        Assessment & Development Centres 
·        Avoiding Employment Tribunal Claims 
·        Disciplinary & Grievance procedures
·        Employee Attitude Surveys & Employee Relations
·        Managing line managers and personnel to improve attendance
·        Organisational, Employee and Management Development 
·        Record Keeping/Monitoring
·        Psychometric testing, CV and  reference verification  
·        Restructuring and Redundancy
·        Salary Reviews
·        Terms & Conditions of Employment
·        Training Team Leaders on employment related issues.”
 
For further information please contact Dave Thompson on dt@s2hr.co.uk  or Nicholas Lakeland on ncjl@s2hr.co.uk  or call +44 (0)20 7749 2700

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Would You Sell Your Vote For £750? http://www.silvermansherlikerblog.com/new-blog-postwould-you-sell-your-vote-for-750 http://www.silvermansherlikerblog.com/new-blog-postwould-you-sell-your-vote-for-750#comments Sun, 09 May 2010 23:00:19 +0000 http://www.silvermansherlikerblog.com/?p=560  

poll2A question for you:

“Would you sell your right to vote for £750?’

No? I thought not.

Nor would I.

Nor, I suspect would the thousands of British voters who, on Thursday night, had the doors to the Polling Stations slammed in their faces up and down the country, after using best efforts, for most of the day, to exercise their constitutional right to vote.

Their extreme outrage and noble indignation was piteous to behold.

It seems fairly clear that these unfortunate Britons, disenfanchised by administrative incompetence, in more than 14 constituencies and in 8 major cities including, London, Sheffield and Birmingham, do have a legal right to claim compensation.

Article 3 of the First Protocol to the European Convention on Human Rights records the individual’s right to participate in fair and free elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’.

That would at least seem to presuppose that you get let into the Polling Station before closing time and handed a ballot paper.

This principle is enshrined as a ‘Convention right’ by section 1 of the Human Rights Act 1998 , section 6 of which provides that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’.

An electoral law that dictates that people can only vote at a single location, and only before 10pm, presupposes that the public authorities whose job it is to ensure the system works will provide enough staff and resources to ensure that all who wish to vote can do so. If, as on this occasion, they fail so miserably to do so, they are liable for infringing the ‘Convention right’ of thousands of would-be voters who, in spite of their best efforts, were unable to vote.

So far, so good.

The question is what level of compensation would it be proper and appropriate to award to those voters for the flagrant breach of their rights that they have thus suffered?

It would have been interesting, if not instructive, to put this question to the drenched and serried ranks of anguished voters whose right to exercise their vote on Thursday was so effectively thwarted by grievous maladministration

…I doubt that ‘up to £750′ would have been a typical answer!

(Incidentally, the annual budget of the Electoral Commission is about £25 million. What do you think they spend it on?).

Eminent, if informal, legal opinion (eg Geoffrey Robertson QC, Lord Pannick), has apparently, upon journalistic enquiry, put it variously at ‘up to £750′ or ‘at least £750′.

Surely, the loss of the right to vote is worth more than that, if it is worth anything?

The opportunity to vote, once stolen, is irretrievable. Surely, one’s vote is priceless.

People have died for the right to vote. People still are dying in Iraq.

That a British voter should be prevented from voting in any election is unacceptable. That it should happen in 2010 during the most momentous election in living memory, in a country described by John Bright, in 1865, as ‘the Mother of Parliaments’, and at a time when the British military is fighting in Afghanistan and Iraq to uphold the principle of democratic rule, is a bitter irony of the kind to which it seems Britain has now become almost impervious.

The impromptu witterings of the Returning Officers button-holed for ‘News and Ten’ and the embarrassed excuses of the Electoral Commission only served to intensify the outrage.

If these voters decide to pursue claims for compensation, as surely they must, the question ‘what price the vote?’ will soon fall to be judicially decided.

I, for one, hope that the judges will err on the side of outrageous and punitive generosity. Perhaps in this way the message that certain things like the right to vote are sacrosanct will be clearly heard, as will the message that a half-hearted and complacent approach to discharging one’s public duty is no longer acceptable and, anyway, does not pay.

Section 8 of the Human Rights Act 1998 provides that compensation for breach of a Convention right should be decided using the approach established by Article 41 of the Convention itself, namely the principle of ‘just satisfaction’.

The problem is that the European Court of Human Rights is surprising mean in awarding damages for ‘non-pecuniary’ loss such as the mental anguish suffered by those voters who were so rudely disenfranchised last Thursday.

In its Practice Direction it declares that assessing  ‘non-pecuniary damages’ for ‘non-material harm’ does not lend itself to precise calculation.

However, it does go on to invite applicants who wish to be compensated for non-pecuniary damage ‘to specify a sum which in their view would be equitable’.

Okay. Right.

I have to say that if, on Election Day, I had tried, throughout the day, to cast my vote and had thereafter joined the queue at 7pm and queued in the pouring rain for a further 3 hours only to have the Polling Station doors slammed in my face at 10pm, or told that I could not vote becuase they had run out of ballot papers, I would not be thinking in terms of £750. More like £750,000!

If any court had the gall to award ‘up to £750′ I would be filing appeal papers with the European Court that same hour.

For shame, England! For shame!

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Volcano Problems and Employment Law http://www.silvermansherlikerblog.com/volcano-problems-and-employment-law http://www.silvermansherlikerblog.com/volcano-problems-and-employment-law#comments Wed, 21 Apr 2010 15:01:04 +0000 http://www.silvermansherlikerblog.com/?p=494 Iceland VolcanoVolcano alert!

All hands to the pump!

etc, etc ……but can travel businesses suddenly ask their staff to work around the clock to cope with the huge upsurge in business?

As the ash clouds from the Icelandic volcano slowly disperse, the rail, road and sea ferry industries have been working at full steam (pun intended) to take advantage of the extra business. This means that employees are suddenly being asked to work greatly extended hours with inevitable legal implications under current employment law.

If employees are asked to work in excess of their contracted hours, they can simply refuse to do so, and their employer can’t do much about it. Changing contract terms without employee consent could entitle employees to resign and claim constructive unfair dismissal or wrongful dismissal for breach of contract.

Offering impromptu financial incentives, such as overtime and bonus payments, is the immediate and obvious practical way to get employee ‘buy-in’ to consent to the increased working hours. However, with some forward planning, it is possible for employers to include contractual provisions to cover a sudden, unexpected requirement for extra work in the future.

For employees who are asked to work more than the average 48-hour week and who have not already opted out of the Working Time Regulations, employers must keep careful records to be able to calculate just how may hours are being worked. As the average for the Working Time Regulations is calculated over a 17-week period (and can be argued to be over a 26 week period in this special situation), employers are unlikely to be caught for claims on account of breaching the Regulations by the current volcano situation but may still be required to produce their records in such circumstances.

Again, forward planning may include asking employees to opt out of the Regulations at some point in the future but they cannot be obliged to do so.

Employers must also be mindful of Health and Safety implications for over-worked employees and must ensure that, regardless of the over-time worked, employees are afforded all statutory rest breaks including the minimum provided in their existing contract of employment which, for most employees, must not be less than 20 minutes rest every 6 hours, 11 hours rest in every 24 hour period, and either 24 hours rest each week or 48 hours rest each fortnight. As breaches of health and safety laws can result in personal criminal liability for employers it is vital that, despite the extra hours required, employee’s health and safety is never put at risk.

What about the legal position of employers whose staff are stuck sunning themselves in the Canaries and are unable to get to work?

Employers who deduct pay or insist the time is taken as extra holiday, may receive claims for unlawful deductions from wages.

Employers must try to avoid using their discretion or making decisions on a case-by-case basis as claims may arise for indirect discrimination if decisions are arbitrary or applied inconsistently.

Employers therefore should ensure that they use reasonable and clear communication with those employees burning the midnight oil and those in far off lands buying extra tanning oil.

It may be a good time to consider updating employment contracts generally, to have provisions in place for such situations, not least because the unpronounceable Icelandic volcano isn’t finished yet ….. but then we would say that wouldn’t we.

by Victoria Russell, Employment Law Solicitor

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Is ‘Mock Murder’ in School Legal? Quis custodiet ipsos custodes? http://www.silvermansherlikerblog.com/is-mock-murder-in-school-legal-quis-custodiet-ipsos-custodes http://www.silvermansherlikerblog.com/is-mock-murder-in-school-legal-quis-custodiet-ipsos-custodes#comments Sat, 27 Mar 2010 21:30:19 +0000 http://www.silvermansherlikerblog.com/?p=477 gun2Last week, the staff at Blackminster School, Evesham contrived to stage an impromptu hoax killing in a playground full of 10 to 13 year olds.

For some unfathomable reason they thought it would be a formative experience for them.

Without any warning, the poor lambs were obliged to witness a hooded figure run up to Mr Kent, their beloved religious knowledge teacher and gun him down in cold blood before running off.

Mr Kent apparently met his maker most convincingly.

The terror-stricken children, were then led off , crying, vomiting and right royally traumatised, into the classrooms and, thereafter, were herded into the assembly hall where, after an unconscionable delay of about a quarter of an hour or so, they were told it had all been a hoax.

So that’s alright then, is it?

Er…no actually.

In a British playground, where it is now forbidden to play conkers, throw snowballs, eat sweets, climb trees or even to run, it’s apparently quite OK for the teachers to stage horrific murders in front of the children without warning.

How infuriatingly and pathetically ironic;  but also how unforgivably arrogant of the Blackminster staff to think that such a ghoulish act could in any circumstances be thought educational or anything other than severely harmful to the children.  Apparently, the idea was to create a Crime Scene Investigation to spice up the science lesson. Ha!

Will they just get on with teaching our children how to count, read, write and string a sentence together and leave off trying to turn them into pre-pubescent forensic investigators?

For pity’s sake!

The following blog comment set my lawyer’s mind working:

 SHOCKBLOGPOST

In the US you would not be able to see the school gates for ambulance-chasing lawyers.  I would hazard that the damages awarded against the school by a US jury would stretch to seven figures.

So what is the legal position in the UK?

Can these teachers be successfully sued for such outrageous behaviour?

One thing is for sure, if the boot was on the other foot and it was the children that had staged a mock massacre of the innocents for laughs, they would be suspended and probably expelled.

So…what about the teachers?

English Law, as is so often the case, is not entirely clear on whether or not an intentional hoax that causes panic, trauma and nervous shock of the kind that every child in the Blackminster School playground must have suffered by the deliberate act of their teachers, is actionable, but I suspect that I voice the opinion of many when I say it damn well ought to be.

It is high time to revive an old authority in the form of Wilkinson –v- Downton [1897] 2 QB 57 and bring it back into service especially to deal with cases like the Blackminster case where the hoax in question is perpetrated in the context of the special relationship of trust that exists, or should exist, between teacher and pupil, or any other special relationship of trust for that matter.

Wilkinson –v- Downton  was a case involving a hoax or practical joke of  similar ilk, although nowhere near as gruesome as that practised upon to the poor childer of Blackminster School. The defendant was successfully sued in damages for causing nervous shock and trauma to the landlady of The Albion Public-house by telling her that her dear husband had been severely injured in a riding accident. It was not true but he thought it was a bit of a laugh. She was so traumatised that her hair turned white and fell out, apparently. The perpetrator had to cough up damages of £100 which was a tidy sum in those days.

This early case established that the legal tort of intentionally causing emotional harm to another person was actionable before the English courts. The court deliberately fudged the question of intention saying that intention could be imputed to the defendant if a reasonable person would have recognised that the hoax would cause severe trauma to the plaintiff.

So we are already up and running in our claim against Blackminster then.

It is pretty clear that the staff of Blackminster School intended the hoax killing to be witnessed by the children and to produce some kind of emotional effect upon them. Even if the staff were so emotionally-challenged themselves as not to recognise the effect that the gruesome subterfuge would have on the children (which alarmingly seems to be the case), no reasonable person would conclude that the effect of staging a cold-blooded killing in a school playground by the very people who stood ‘in loco parentis’ could do anything other than to cause severe nervous shock and mental distress to the children.

The problem is that the legal tort of intentionally or recklessly  causing emotional harm to another person has rather been over-reached by the broader law of negligence and, the courts have, as a matter of public policy, deliberately sought to limit the principle that anyone who causes nervous shock or severe trauma to another person is liable to be sued in damages. The argument seems to run that it is commonplace for pranks to be played, or words to be used, with the deliberate intention of causing humiliation or some kind of shock and the law should not award damages as a matter of course in such cases.

Well OK, but it is rather a matter of degree, isn’t it?

Surely, there is a distinction to be drawn between telling a workmate that his fly his undone and then flicking his nose when he looks to see, and a hoax murder in cold blood of a teacher followed by  make-believe and unsuccessful CPR by teachers in front of their pupils without any prior warning or explanation.

By staging the murder hoax, it would appear that the staff of Blackminster behaved negligently and in breach of the high standard of care that any teacher owes a pupil. The question is whether the law, in its current unsatisfactory state, would uphold a claim in damages for the nervous distress thereby caused.

The children would have more of a chance if they suffered, or go on to suffer, recognisable psychiatric illness as a result of the shock that they endured, although, of course, no-one would wish this upon any of them.

What the law regards as ‘psychiatric illness’ is again open to debate. It would probably include severe post-traumatic stress disorder, anxiety disorder and other severe psychological condition caused by the shock. It may well not include simple nervous shock and its immediate, but temporary, symptoms.

Shame.

An action in negligence against the school would also require the various ‘proximity tests’ to be satisfied. These are the somewhat arbitrary limitations that the courts have used to prevent a proliferation of ‘anxiety claims’. For instance, the law requires that there should be a ‘special tie of love or affection’ between the personal suffering the accident and the witness claiming nervous shock as a result. It may be doubted whether the teacher-pupil relationship would satisfy that test, especially in this particular school.

However, I would argue that the children in this case were not witnesses but principal victims of the hoax that was perpetrated against them so that the proximity tests should not apply.

Sometimes, old law is good law.

I would like to see a class action brought against the school based on Wilkinson –v- Downton (discussed at length with other relevant case law by the House of Lords in the Wainwright case [2003]) on the basis that real nervous shock and psychological distress (though short of psychiatric illness) suffered by the victims of a deliberate hoax, where the perpetrator intends to shock, or is reckless as to whether shock is caused, and where the perpetrator is in a special position of trust such as  a teacher, should be compensated by the payment of substantial damages.

This would teach the blighters a lesson since they seem incapable of teaching a decent lesson themselves.

Quis cusodiet ipsos custodes?

Only the courts, I fear.

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Epic Blawg Review #245 – Charon QC, The Lord of Misrule Speaks Out http://www.silvermansherlikerblog.com/epic-blawg-review-245-charon-qc-the-lord-of-misrule-speaks-out http://www.silvermansherlikerblog.com/epic-blawg-review-245-charon-qc-the-lord-of-misrule-speaks-out#comments Sun, 03 Jan 2010 15:15:40 +0000 http://www.silvermansherlikerblog.com/?p=430 The unmistakeable voice of Charon QC, the Lord of Misrule, announces his return in a sizzling Blawg Review 2010 Opener (nay, his 5th)…a veritable oeuvre of seamless wisdom..and 8 Chapters long!
  
Where does this man get his energy? ……..Smokedo? Surely, not.
smokedo4
We get the kindest mention in Chapter 5 for our own Blawg Review #243 (‘Fighting Back: A Meditation for Lawyers’) …and for being a ‘very good user of Twitter’ …LOL! Savour every twist and turn of Blawg Review #245 until its last valedictory image….you will enjoy. My own New Year’s Resolution is to START smoking again which brought forth this benediction on Twitter from the King of Smokedo himself:
admiralcharonapr_biggertweet
 “Like a Gentleman”   …….I like that.  Happy New Year! 
 
cigargent 
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Blawg Review #243 http://www.silvermansherlikerblog.com/blawgreview-242 http://www.silvermansherlikerblog.com/blawgreview-242#comments Mon, 21 Dec 2009 08:46:41 +0000 http://www.silvermansherlikerblog.com/?p=318 Welcome to the Blawg Review #243 from a sunny, snow-covered London.

Fighting Back: A Festive Meditation for Lawyers

The Physical Unverse tends towards chaos and dissolution …the Moral Universe towards injustice and despair ….the Legal Universe, for surely such a dimension does exist, towards obfuscation, misdirection and delay.

But there is a contrary principle.

candle

…the Light shines in the darkness and the darkness comprehends it not.

So let us declare this contrary principle that it may burn ever brighter and more unquenchable in the minds and hearts of all who practise the Law. 

Let us, as lawyers, on the eve of the proximate festivities, at the threshold of another year, and as the destructive tide of the 2009 Recession begins to turn, celebrate and magnify all those amongst our number who, in the practice and profession of The Law,  ….FIGHT BACK! 

For should not the steely and dogged courage and determination to fight back, often in the face of overwhelming odds, often in total default of resource and often when the very capacity to fight has itself been exhausted, be the distinguishing hallmark of our profession?

The case is bad. The facts are poor. The evidence is not there. It seems a forlorn endeavour. It seems a hopeless cause.

No matter. We will fight. We will fight back. We are fighters to the core. We have no choice. We must oppose to overcome. We will keep alive the intermittment spark of hope. Whatever the cost. However long and hard the fight may be.

wscAs @London_Law_Firm, I am known to figure the epigrammatic inspiration of Winston Churchill in my sporadic tweetings. I make no apology for this.

That I am a Scholar of Churchill College, Cambridge University, is irrelevant. That I live a few minutes drive from the Churchill family retreat at Chartwell in Kent is purely incidental.

I would tweet Churchill anyway …because he fought back. Big Time.

He fought back when all hope was already extinct; when the British Parliament had already been bombed to rubble; when defeat and death had already taken up residence in men’s hearts; when there was no rational basis upon which the fight should continue.

When he was an old man ….still he fought back.

weshallfight3

The legal blogosphere fairly rings with fighting spirit this week.

Ilya Shapiro, illustrious and ambitious champion of Individual Liberty, Free Markets and Peace, fights back this week against the constitutional dangers of vague laws arguing nobly and persuasively in the context of a Supreme Court review of ‘honest services fraud’ charges against Enron CEO, Jeffrey Skilling, that due process requirements of fair warning and definiteness apply equally in the contexts of white collar business crimes, business torts, and civil regulations. Tim Lynch also takes up the legal cudgels against the dangerous trend of overcriminalization in US federal law. Keep fighting, brothers.

John A Flood fights back characteristically with humour against the fact that all UK lawyers will soon be required by the Legal Services Act 2007 to be Superman (“Here’s my card, sweetie. I also happen to do a bit of lawyering on the side”). Now, in very truth, all UK lawyers must fight like super-heroes as the UK market for legal services undergoes virtually total deregulation. We say, ‘Bring it on’!

For another great example of a lawyer who is fighting back heroically against the devastating forces of natural disaster and political conflict, look no further than my twitterfriend, Thomas P Valenti, Member of the Board of Mediators Beyond Borders, fighting back undaunted against the consequences of Hurricane Katrina, Climate Change and the political tensions in the Middle East. Thomas it is a privilege to know you.

never yield

Brian Inkster is another lawyer who is fighting back, in true Churchillian spirit, this time against homelessness in Argentina….and not just by raising a phenomenal amount of money for the Habitat For Humanity cause. He actually carved time out from his busy and successful law practice in Scotland to go to Argentina himself and get building with his own bare hands, complete with hard hat and impressive boots that he broke in by wearing them to the office before he went. You can read the whole story of the fight from the links on yesterday’s Argentina compendium blog-post. To The Noble Inkster (aka ‘Lord of the Dance’), we say …..

tango

…keep on dancing, brother!

No legal blog on the subject of ‘fighting back’ could hope to be complete without inclusion of the UK Legal Blogmeister himself, CharonQC who copiously and continuosly wrestles with all manner of subjects, some of whom are known to be perfectly law-abiding citizens. Most recently, he continues his trenchant commentary on ‘Trafigura‘ who have, ironically, extracted £25,000 from the BBC, for apparently straying wide of the mark on the subject of causation, a topic generally best left to lawyers. His most excellent podcast on Trafigura filled an otherwise futile 20 minute wait at the Bluewater checkouts recently whilst my eldest son attempted the purchase of exactly the right  kind of hot water bottle. 

Charon has recently taken up the fight against the pretentiousness of the contemporary art scene…a battle from which he has alreay emerged the victor with his revolutionary new concept, F**Kart ……Another Rioja? ….A la tienne!

‘Snow White Snorts Snow’ – Charondigliani

Charondig

From the sublime to the subject of re-insurance and a particularly interesting blog by Philip J Loree Jr of Loree & Loree who is fighting back to ensure that the limits of arbitral power are kept within proper bounds. Fight on, brother.

Fighting back with both tactics and strategy is that mighty martial foe and quick-witted twitterer The Trial Warrior whose highlighting this week of some state-of-the-art (of War) thinking on forum and jurisdictional issues typifies his declared belief that: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” (Sun Tzu). Antonin I Pribetic has turned ‘fighting back’ into a noble art form of which he himself is a supreme embodiment. Fight on, oh quick-witted One!

nevergivein

The Efficiency Coach fights back this week against poor delegation skills in law firms . Quite right, Heather. Quite right! Fight on!

Fighting back is a mind-set whether you are One Minute Lawyer fighting back against the routine shackling of young offenders, Criminal Defense Lawyer fighting the 14,000 illegal US consumer scams or Lemon Law Court fighting against, well ….lemons.

Maternal generosity does not normally provoke a major legal battle unless, of course, the mother is, Liliane Bettencourt, heiress to the L’Oreal fortune and one of the richest woman in the world and the generosity involves gifts totalling over a billion dollars. Andrew Mayoras in The Probate Lawyer Blog records the permission granted to Bettencourt’s daughter by a French Court to press criminal charges against the recipient of such lavish generosity and also to subject her mother to a medical examination on the assumption, presumably, that she must be deranged. It will be interesting to see how effectively the donor fights back in defence of her generosity. Nowhere is the ability to get up and fight back more necessary than in the growing field of UK contested probate work.

Illinois law firm, Levin & Perconti record the legal fight of Linda Kaiser that resulted in the product recall of 50 million roller blinds and window shades after the tragic death by strangulation of her baby daughter in 2002. She thought it was just an accident until she discovered many similar tragedies. She could not but fight back and she did.

The recent fight back in Brent, North London by a Jewish family against the attempt by the Jewish Free School  to exclude their 12 year old son on the grounds that his mother had converted to the Jewish faith at a ceremony conducted at a progressive synagogue is highlighted by Law Less Ordinary along with the Supreme Court’s exhortation that all UK faith schools must now operate strictly non-discriminatory policies.

draw2

Some fights are eternal.This week @Clarinette02 fights back against Google’s apparently increasing disregard for the principle of personal privacy. With tenacity and gentle irony, she debunks the arrogance of the “If you have nothing to hide, you have nothing to fear” argument. We don’t have doors and curtains to preserve our shame, but to retain some vestige of privacy. Google’s pre-eminent position as garnerer of our virtual lives is ever open to hackers, over-zealous government investigators and simple accident whatever the policy of Google may be…and that policy seems to remain frighteningly ambiguous. (..Have you found this blog yet, Googlebot?). Fight on, Tara, fight on!

This week, The AM LAW Daily fights back against a seasonal menace. A flying champagne cork travels at 60 mph. Tipsy lawyers are unlikely to blink in time. Here you will find advice about how to defeat Seasonal Champagne Cork Blues.

Neil Worral, guest blogging this week on The Barrister Blog fights back against the ‘conkers-in-goggles’ ‘elf ‘n safety gorn mad brigade. On balance, he says, over-regulation in the filed of health and safety is not prevalent.

Jonathan Mitchell QC fights back against holiday boredom with a 12 question legal quizz (Question 12: Which court sustained the refusal of a bank to replace a banknote allegedly eaten by the claimant’s cat?). There is a bottle of claret in it for the winner but wrap up warm ….because it is snowing on this site.

@ABeautifulMind1 is not just a beautiful mind. Although not yet sporting a blog (it will be a good read when she does!), she deserves a very special mention as a lawyer who has been fighting back in difficult circumstances and with admirable tenacity against a major UK bank. The bank will lose, of course. Her tenacity has recently yielded good news indeed. Follow her and learn.

Stephanie West Allen (Idealawg) is fighting back this week against the lack of creativity amongst lawyers. For reasons that we must presume are purely professional, she wants us all to dress up as fire-fighters. Result! Now our clients will be able to swoon when they first meet us and not wait until they get the bill. The idea is clearly catching on in London where I have just today seen a fire engine being driven by a team of perruqu’d barristers who are obviously celebrating creatively at the news that they can now be marked up and charged out at a profit and even take their own court bookings online.

totheend

Rees Morrison fights back this week against too much information-gathering and not enough intuitive thinking in law departments. This must be right, I feel.

Sam Hasler fights back against the incipient danger of The Stray Text Message.

China Law Blog fights back against ineffective food safety regulations in China in spite of a new Food Safety Commission and Richard Goldfarb on Food Liability Blog fights back against ‘bagel-related injuries’ and, the more prevalent, ‘chicken-related injuries’.

So should we celebrate all lawyers who fight back, in matters great and small, personal and professional. It is an art. We should cherish it.

We live in a strange Universe where lawyers can fight and beat dentists, funeral directors and, surprisingly, catwalk models.

Lawyers are marginal victors over a wet Sunday in London but in the perennial fight between lawyers and a night in with a good book, the solitary night in with a good book wins the contest convincingly.

We should not be too upset about this.

In a world defined by conflict and struggle, we must choose our battles well.

May God bless and sustain all those who fight back, on every level, and in every walk of life, against confusion, evil, injustice, lack, stupidity, oppression and the arbitrary exercise of power and let us, as 2009 draws to a close, recognise and celebrate our own role in that struggle.

Lawyers who fight back will triumph over oppression and injustice. Let us be in no doubt about this.

goodwins

sure i am

May I take this opportunity to wish you a peaceful and joy-filled winter respite and a prosperous and sucessful 2010.

Thank you for allowing me to host this Blawg Review.

Blawgreview has information about next week’s host and instructions how to get your blawg posts reviewed in upcoming issues.

stgeorge

 

Author: Chris Sherliker

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