35 posts • joined Monday 21st June 2010 12:31 GMT
Re: Also, does it matter ...
Ahh yes. That''ll be the kilogram that isn't a measure of weight.
But of course metric makes such perfect sense doesn't it.
His job is to represent his client's interests. The duty to the court covers things like putting forward a case which the barrister knows to be untrue. If you as his client say "I did it but I instruct you to say I didn't" the barrister would be embarrassed because if he continued he would have to breach either his duty to the court or his duty to the client. He would then have to stop acting for you.
Had he turned up at court and said "I am the man who owns Newsbin" he would have been fine. It was the deception that was the problem - you can't claim to be an independent representative with duties to the court when you are actually acting in your own interests.
I’m glad to see a few common sense posts at the end here. The fact is that this was not somewhere where people went to have their legitimate complaints aired in public. If it was, and the complaints were true and fair, there would be little if anything any of the solicitors could have done about it. The point here is that the solicitors had no means of replying to or correcting the posts. Even if they had been given the opportunity, their duty of confidentiality to their clients prevented them from disclosing the details to the site unless the complainant agreed.
If you have a complaint about your solicitor, you have plenty of means of redress. You should first complain to the firm. Many people regard this as a waste of time, but if you were an independent supplier in the IT industry and someone had a problem with something you had done, would you be happy if they published your details on a website as being unreliable (or worse) instead of asking you to put it right?
Second, there is the SRA. If you doubt its willingness to deal with errant solicitors, have a look at the decisions on its website. If the matter is serious enough it will be referred to the solicitors disciplinary tribunal which has wider powers.
If you want redress because you have suffered loss as a result of a solicitor’s actions or negligence, there are plenty of solicitors who specialise in claiming against other solicitors. This is going to be more difficult from later this year, because of the restrictions on conditional fee agreements, but that is not the fault of the lawyers. As someone mentioned above, all solicitors have to have insurance. If you have a legitimate claim, you will get redress.
Claims against solicitors in court, or complaints to the SRA are dealt with publicly. The results of complaints and many judgments are published online. If you want to check up on a solicitor before instructing him, go to the SRA’s web site.
There are crooked solicitors out there. Not many, but some. There are far more negligent solicitors out there, and most of those are negligent through carelessness or oversight rather than recklessness or fraud. Few lawyers will go through a whole career without a complaint of some sort, but that is usually because of the complexity of what we do, not because we are cashing in knowingly against a client’s interests. I, in common with most lawyers, rely on clients returning to me in future, and ripping them off does far more harm to me in the long run than doing my best for them.
I looked at the sfh site after the firm I then worked for was approached by Kordowski with a view to him referring potential negligence claims to them (in return for a hefty fee to go to K, obviously). The firm declined the offer because after looking at the site, it appeared that nearly all of the complaints related to the following:
1. the solicitor’s fees. All solicitors’ clients can have these assessed by the court if they wish, and are given information about how to do so at the beginning of the instruction, but that does not involve a claim or a complaint unless the solicitor refuses to deal with it, or
2. the client losing his case. No matter how good or bad the solicitor representing him, one side has to lose in every contested case - it does not mean that the solicitor was negligent, or
3. pure, unsubstantiated vitriol.
If there were legitimate complaints on the site, I could not work out what they were, and I spend my life looking for legitimate complaints amongst reams of irrelevant drivel.
Yes, I am a lawyer. No I have never been listed on sfh, or (as far as I am aware) any other such site.
There's also the small matter that the people who are in power when the contract is negotiated often know damn well that they won't be around to take the blame when it all goes tits up. So they leave the project parameters wide enough that they can say a. it is a marvellous thing that will provide all the answers to the world's problems and b. 10 years later, it would have worked fine if the other party hadn't buggered it up.
The truth is that what they care about when they commission these things is political advantage, and they don't give two hoots about whether it works or not.
I'd be interested to hear your evidence for brochs being burial related. The evidence AFAIK is for defensive structures.
And as for lumping great boulders around, you've never been to Callanish have you. Much more impressive if less well known than Stonehenge.
That's exactly what happens
with the bus stop boards in London. It's got nothing to do with where the bus actually is - it just tells you where it's timetabled to be. It's a complete waste of money.
Given the usual level of efficiency at tfl, I have no doubt that the same flaw will be included in any new system.
Try googling "indirect discrimination" and you will have your answer.
The lawyers have told no one how to do their jobs. It's the politicians that brought the law in, not the lawyers.
As for the DEA conflicting with EU law, the whole point of the decision was that it doesn't. Not yet at least.
If it's with a bag, it's not perfect tea,
Loose tea (my preference is nilgiri leaf, but not everyone has taste) in the pot. Boiling water poured on whilst stirring, Cover with a cosy for no less than four minutes. Full fat milk in the cup. Pour tea onto milk. Replace cosy to keep the warmth in for seconds.
I'm sure there are some naval ordnance techno boffins out there who can put me right on this, but I would have thought the cavitation from all the escaping vapour would make for a hell of a noisy torpedo, which I would expect to cancel out at least some of the speed advantage.
Also how would the necessary temperature be maintained? Onboard equipment would take up space and fuel, which would presumably limit range and warhead size.
Over to the people who claim to know what they're talking about.
It's not as straightforward as it sounds
It may well be that the people ACSL represented had no legitimate claim, but that doesn't necessarily mean that the file sharers can undo a payment made in settlement. A settlement of a claim (even before it is brought before a court) is a contract equivalent to "in exchange for you not suing me, I will pay you £x". Whether the proceedings would ultimately succeed is neither here nor there - you pay them off to stop them bringing the claim in the first place.
I am not aware that there is any suggestion that ACSL did not have instructions from a client. My understanding is that it has now been shown in the proceedings that that client has no claim against the defendants, suggesting that he did have instructions. In any event, it is improbable that any of us will ever see them because they are privileged.
Btw, the £300,000 figure probably means that there were far more than 600 who paid up. It is highly unlikely that ACSL would have kept the whole £500. Much more likely that they were entitled to keep a percentage on a contingency basis, with the remainder going to the client.
@ Loyal Commenter
Strangely enough, that's exactly my point.
If they work on that definition
it's bye bye to all "climate scientists" isn't it.
At the moment, no, but that is what the proposed reforms want to bring in.
As matters stand, you don't cover the costs at all, unless you are the person who is successfully sued. Your solicitor receives nothing from you in any event (bar perhaps a small amount of the fee (usually no more than 4%) which for reasons that are too complicated to go into here are not recoverable from the loser). If you lose the case, the solicitor gets nothing. If you win, in the vast majority of cases, the costs, including the success fee, are paid by the losing party.
One of the things that is being proposed now is exactly what you say. The proposal is that the success fee is paid out of any damages you recover, i.e. you do have to pay for the lack of success on another case. I agree that this is fundamentally wrong.
"An alternative view would be that the hourly charges quoted by the solicitor are insufficient to make this business model pay - so he adds extra charges where he can. IOW, he disguises the true cost of litigation by quoting an unsustainable headline rate which is then bumped up on success."
If that's the way you want to look at it, but it is cynical in the extreme. Bear in mind that these arrangements were unlawful until the 90s and only introduced by politicians who wanted to find an alternative way of funding cases when legal aid was being cut. And they did it in the face of protests from the lawyers who didn't want the change.
"And the MoJ agrees that these charges are not part of the cost."
At the moment, yes, but their view changes on a regular basis. I don't agree with the current view which ignores the reason why CFAs were allowed in the first place.
"There will always be a goodly number of cases which are readily won. CFAs will always be with us. But the market will shrink - the chancers will no longer have such a good probability of payout with such minimal risks. So there will be a tendency for the less well-founded cases to fall by the wayside, whilst simple cases with clear liability will still be dealt with as CFAs. This is a Good Thing (tm) all round - unless you are a dodgy CFA solicitor."
Most badly founded cases fall by the wayside anyway. CFA solicitors review the cases at the outset and if they are badly founded, the solicitor refuses to take the risk of not getting paid. You seem to be under the impression that CFAs are only, or mainly, used in poor cases but that is not the case. They are mostly used by genuine litigants with real problems who have no other way of bringing a case.
"Nonsense. Most people will be able to get legal representation - but with shaky cases, they will undoubtedly have to do some of the funding themselves. Again, a Good Thing."
Except that most people won't be able to afford it, including those with good cases.
"From http://www.thejudge.co.uk/after-the-event-insurance :-
I'm deliberately quoting from an insurance broker, because they are selling the product that you claim does not exist."
Disbursements are the expenses that the solicitor has to pay out. They do not include his own fees.
With regard to the main aspect of the article, relating to claims companies offering cash incentives, I do agree with the change though, as that does encourage spurious claims often with claimants lying to create the claim, not because of the perceived damages but because of the cash they can get up front. We need to bear in mind though that CFAs are not only used in these situations; they are offered by many firms on all types of civil claims.
Vic - You are missing the point on conditional fee agreements
No win no fee means just that - if the case is not successful, the solicitor gets paid nothing, when he may have done thousands of pounds worth of work. In litigation there is never any certainty of winning, so a solicitor who takes on cases on CFAs will deal with a certain number of cases where he will not be paid. The success fee is not a bonus designed to give him a freebie - it is the compensatory element on successful cases to balance the cases where nothing is paid.
This ensures that the solicitor is happy to take on CFAs in the first place.
Why, you might ask, do we care if CFA's are taken on? The answer is that for the vast majority of people there is simply no other way of getting access to legal representation. Legal aid in civil cases is almost non existent - only those on benefits need apply. For those on ordinary incomes, the CFA is the only way they will be able to get advice or representation without potentially bankrupting themselves.
The ATE insurance is designed to cover the costs of the other side if the case is lost and a costs order is made against the unsuccessful CFA funded litigant. It does not benefit the solicitor dealing with the case in any way.
The worry with these proposals is that solicitors will not be able to deal with CFAs without making a loss so they simply won't deal with them. That means that most people will not be able to get legal representation. The only people who will benefit from that are the potential defendants, most of whom are quite capable of affording the legal costs anyway.
The only people who got an id card were the die hard enthusiasts who knew all the arguments and also knew the positions of all the political parties.
They got the card in the knowledge that they would be scrapped and when there was no assurance that they would get their money back. More fool them.
It was the very few people like that who lumbered the rest of us with the enormous cost of the whole project so as far as I'm concerned it's only fair that they should pay more.
No sympathy here.
As someone who has to deal with the courts, I have some sympathy for them on the points relating to service and filing of the defences. It simply isn't the fault of the litigant (no matter what you think of his case) if the court hasn't done its job properly by serving the claim, properly recording the fact and sending out the filed defences to the claimant.
On the other hand, there is really little excuse for the pleading errors and the pretty obvious failures to follow procedure on the judgment requests. These are things litigators deal with on a daily basis, and they shouldn't be getting them wrong.
In total the court heard from 4 expert witnesses. At trial, a Mr Fisher for O’Shea and Dr Type for the prosecution. The jury heard both side’s experts before convicting.
On appeal, the prosecution relied on the evidence of Dr Sharples, and O’Shea on a Mr Bates. Bates’s evidence was the only evidence found by O’Shea in the years since his conviction to support his defence of fraud. Aside from the fact that Bates’s theories do not add up, it is not entirely surprising that the court would prefer any other expert’s view over his given the following passage from the judgment:
“Quite apart from other reasons, in our view his denial to us of having signed a confidentiality agreement in the case of Grout was a deliberate lie, maintained until his signed agreement was produced to him. It is also relevant that he has been convicted of perjury as a result of his misrepresenting his qualifications when giving evidence.”
There is no question of the court ignoring expert evidence. The court considered the evidence of both experts on the appeal, and decided not to follow the one whose theories did not stack up and who was a proven liar.
I can’t see anything wrong with that.
If you want to read the judgment here http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/o-shea-judgment-06122010.pdf, you'll find that you'd have to have signed up to it through his dial up connection, using his own passwords, and have him not query the billing when he did query other items on the same bills.
Not as simple as he would have you believe.
has been used by the Germans for a long time, without complaint - it's called eisbock. The difference is that the reason behind it has traditionally been to concentrate the flavour rather than to create distillate strength beers, hence eisbock is usually 10 - 12%.
I haven't tried any of Brewdog's top end strength beers, so I can't comment on the flavours, but personally I would rather have a good single malt if I was going for a beer based drink at that strength.
Couldn't agree more
All this nonsense about "who will we use it against" misses the point of a deterrent. No one wants to use it, but in 10, 15, 20 years time we don't know who might be threatening us, and that could just as easily be Monaco or Djibouti as North Korea, France or China.
Various countries have developed or are developing both nuclear weaponry and delivery systems, many of them outside of the non proliferation treaty. Those countries will regard that technology not just as a useful bit of muscle on the world stage, but also as a very good revenue raiser. By selling the technology on to other countries which care not a jot about non proliferation, we could end up as one of the few countries without a deterrent if we get rid of it now.
The difference we would have is a navy capable of hiding our weapons offshore, where they can't be detected. That is not something that many countries can boast, but it seems to be under threat now. 2 coracles and a canoe do not a navy make, and we need to keep enough ships and subs at sea, not just to project power, but to protect ourselves.
The cost is minimal compared with the risk, not to mention the increased cost when we realise, too late, that the means to defend ourselves isn't there.
A nice enough summation of the general law on contract in this area, but there are exceptions. If you buy a ticket for e.g. a railway journey, it is subject to the rules of carriage, even though you may not have seen them. The courts will create new exceptions if they are needed, and in the UK, that usually means where there is commercial justification for it. The fact that for the last 20 odd years nearly every piece of software has been sold with a EULA would very likely be taken as evidence that everyone knows that they are buying no more than the right to use.
What is perhaps more interesting is the concept of consideration i.e. the price, in contract law. Generally, if there is no consideration for something then there is no contract. If you have contracted with the retailer to acquire the medium, what consideration has passed from you to the manufacturer? Absent consideration, there is no contract.
As to Sale of Goods Act cases mentioned elsewhere, these are not really relevant to this. It might (subject to what I have said above) give you a remedy against the retailer for not selling you what they said you were getting, but it would be unlikely to afford a defence against a claim by the manufacturer.
I suspect that the dearth of cases on this subject in the higher courts in the UK is because the manufacturers have no wish to face these arguments, and they will settle rather than risk having the points decided against them.
s1 Torts (Interference with Goods) Act 1977; "Detinue is abolished."
They could however apply for an order for delivery up of the material, but the police would claim PACE in defence as their entitlement to retain it.
You are possibly right that the question could be one of the basis of the seizure but also its reaonableness. Is there evidence that the attempted to obtain the details of the cameraman so that the material could be obtained later? If not, what was the basis on which they thought it would be unavailable at a later time?
There is also a technical argument over s23 and whether a "place" would include the street once the ejusdem generis rule is applied.
I am not aware that these arguments have been tested though, so the police will undoubtedly argue away to their heart's content unless and until someone goes to court to find out.
As any fule kno
you can reverse the polarity of a neutron flow, so what's the problem?
reuse not recycling
I am very far from being an eco tosser, but as someone who appreciates the countryside, I believe in not filling it up with our rubbish. But at least as far as bottles go, recycling is not the answer.
Glass may not be as carbon friendly in manufacture as cans, but glass can be reused, as it used to be, and not just for milk. I remember as a child in the seventies taking squash and lemonade bottles back to the shop to reclaim the deposits - it was my main source of income for years. Now if you have a glass botlle that's used say 20 times before it reaches the end of its useful life, that is a lot better than using an aluminium can, which cannot be reused.
On the power side, the US use 120v, not our 230. So what difference does that make to cutting bills by those methods over here?
The opening days are mostly dictated by the fact that CAMRA's festivals are run by volunteers, who have to take a week's holiday from their ordinary jobs to run them. If you add the weekends either side, you get 9 days straight to run through. 3 days to set up, and 1 to take down is roughly how it works, so that fits in with most people being able to take a week off to staff the event.
If you open on Thurs to Sun, that means a one day shorter festival, which can't happen because of venue costs (in the case of the larger 5 day events), so you're talking about Weds to Sun or Thur to Mon, in either case meaning the whole of the first week to allow for set up. The staff would then need to take an extra one or two days' holiday, which most people just can't do.
In any case, the amount of beer ordered at the festivals you mention is such that it is rare for even the popular beers to run out before Friday. In the case of the Great British BF at Earls Court, the really popular beers i.e. champion beer of Britain competition winners, have additional orders placed to make sure that they don't run out. And the chances of you not being able to find a few you like in the 200+ that are normally left at GBBF by Saturday are, I think, slender.
As for the benefits of CAMRA membership, how about cheap entry to beer festivals, cheap beer books (including the Good Beer Guide), monthly mag with details of new beers and good pubs. And of course the fact that you are helping to promote good decent beer.
I should declare an interest - I will be running the Nelson Bar at this year's GBBF from 3 to 7 August. Coincidentally, that means I will be serving the Doom Bar and Black Prince, although Skinners will have Betty Stogs and Cornish Blonde. See you there.
Except that nearly all of the Act has been repealed.
See the statute law database link above.
This law is used frequently against pavement cyclists, so it's no surprise that they're extending it to another menace.
I am a lawyer. This is English law, so does not apply elsewhere. It is not advice and should not be relied on without consultation with a solicitor on your own circumstances.
At law, there is usually nothing wrong with bidding on your own auction provided that you make it clear in the auction conditions that your right to bid on your own item is reserved. The right is specifically reserved in land transactions by the Sale of Land by Auction Act 1867, but is of general application.
In this case though, there cannot be a reservation because it is against the auctioneer's rules to bid on your own item. In that case, as mentioned above, the Fraud Act comes into play. For what it's worth it would have been unlawful at common law prior to the Fraud Act coming into force, but that's not relevant to this situation. Section 1(1) provides that "A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2)." Section 2(1) states "A person is in breach of this section if he—
(a)dishonestly makes a false representation, and
(b)intends, by making the representation—
(i)to make a gain for himself or another, or
(ii)to cause loss to another or to expose another to a risk of loss."
A bid is a representation to the auctioneer and to other bidders, and therefore the bid is a fraud under the Act. There are other ways that this behaviour could be fraudulent too.
As for making offers on property in writing and getting written acceptance, that can amount to a contract, but I would not advise any buyer to do this. At the time of the offer, there will usually have been no investigation of title, or searches to ensure that the property is one you relly want to buy. So you might find that you are contractually bound to buy a property with subsidence, next to a planned 6 lane motorway and the seller doesn't have absolute title to the land.
Just the same as here then
The Unfair Terms in Consumer Contracts Regs 1999 say pretty much the same thing, as did the 1994 regs that preceded them. The reason being of course, that Spain adopted the same rules as the rest of the EU, when they were told they had to by Directive 93/13.