Wednesday 28 March 2012

Ward LJ on boundary disputes....

I hate boundary disputes - and so does the Court of Appeal.  Ward LJ is becoming the next Denning MR:

A little extract from a recent judgment, with some highlighting from me....

    Lord Justice Jackson
    I agree that this appeal should be dismissed for the reasons stated by Lloyd LJ. I wish to add a comment about the manner in which the litigation has been conducted.

    This case concerns a dispute between neighbours, which should have been capable of sensible resolution without recourse to the courts. During the course of his submissions in the Court of Appeal Mr Pearce for the claimants observed that this may not be an "all or nothing" case. A moderate degree of carpeting in flat 8 might (a) reduce the noise penetrating into flat 6 and (b) still enable the occupants of flat 8 to enjoy their new wooden floor. This is precisely the sort of outcome which a skilled mediator could achieve, but which the court will not impose.

    Of course there are many cases where a strict determination of rights and liabilities is what the parties require. The courts stand ready to deliver such a service to litigants and must do so as expeditiously and economically as practicable. But before embarking upon full blooded adversarial litigation parties should first explore the possibility of settlement. In neighbour disputes of the kind now before the court (and of which I have seen many similar examples) if negotiation fails, mediation is the obvious and constructive way forward.

    In the present case a mediator would not have been concerned about the interaction between the various leases and the licence to carry out works. Nor would he have been concerned about the other interesting points of construction, which first the county court judge and now this court have been called upon to decide. Instead he would have been helping the parties to find a sensible resolution of the practical problem which had arisen. I have little doubt that such a mediation would have been successful. The points of law upon which the litigation has turned are not easy ones and at the time of the hypothetical mediation neither party could have been confident of victory.

    As it is, neither side wrote to the other proposing mediation until shortly before the hearing in the Court of Appeal. By then huge costs had been incurred. The claimants' costs up to the end of trial were £23,195. The claimants incurred a further £34,609 costs on the appeal. The defendant's costs up to the end of trial were £32,798. The defendant incurred a further £49,532 costs on the appeal. Thus the total costs thrown away amount to £140,134. If the parties were driven by concern for the well being of lawyers, they could have given half that sum to the Solicitors Benevolent Association and then resolved their dispute for a modest fraction of the monies left over.

    Lord Justice Ward
    I also agree that this appeal should be dismissed for the reasons given by Lloyd LJ.

    I wish enthusiastically to associate myself with the observations of my Lords on the desirability of mediation in neighbourhood disputes. To repeat what I recently said in Oliver v Symons, a boundary dispute:

    "I wish particularly to associate myself with Elias L.J.'s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come."
    Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing.

Monday 26 March 2012

Wow - now that is a fine.....

Coutts, HMQ's bank and bankers to at least 1/2 the Bar of England and Wales has been fined £8.75M (reduced by third for an early settlement) because it failed to take reasonable care to establish and maintain effective anti-money laundering (AML) systems and controls in relation to customers that posed a higher money laundering risk than standard customers (high risk customers).

Woops...... the FSA added:

Coutts’ failings merit the imposition of a significant financial penalty. The FSA considers the failings to be particularly serious because:
Coutts is a high profile bank with a leading position in the private banking market and is a gateway to the UK financial system for high net worth international customers. It was particularly important, therefore, that Coutts had robust systems and controls to prevent and detect money laundering;
the markets and customers that the Firm was targeting included certain jurisdictions with AML requirements which were not equivalent to those in the UK and which carried an inherently high risk in respect of money laundering;
the Firm provided financial services to a large number of high risk customers, the number of which approximately doubled during the Relevant Period, and it handled considerable sums of money on behalf of those customers;
the failings persisted for a period of almost three years;
the failings were not identified by the Firm;
the Firm, along with three other institutions within The Royal Bank of Scotland Group, was fined in August 2010 for failing to put in place adequate financial crime systems and controls, in that case in relation to UK financial sanctions; and
the failings in this Notice also occurred in a period during which the FSA successfully brought and published other Enforcement cases against a number of institutions for shortcomings in their financial crime systems and controls. As such, the Firm ought to have been aware of the importance of systems and controls to prevent and detect all types of financial crime, including money laundering.

Wednesday 21 March 2012

On Budget Day - cuts begin to bite at Employment Tribunals

I kid you not - East London Employment Tribunal is sending out letters like this

In other words - there is no money to continue providing justice.

Which means that HMG has rather failed to provide a basic service.

Which is a budgetary disaster, Mr Osborne.

We're all in it together.

Sunday 18 March 2012 aid of the civil power

There has been lots of consternation down my end of London about the deployment of Surface to Air missiles on our local common in aid of securing the Olympics. Is this legal? Unlike in the USA where the Posse Comitatus Act, would prevent such a deployment without an Act of Congress, HMG can deploy the military anywhere in the UK with absolute discretion - it's that Royal Perogative in the hands of the Govt. again; & as Lord Diplock said in CCSU v Minister for the Civil Service - the national security royal prerogratives are off-limits to the Court:

National security is the responsibility of the executive government; what action is needed to protect its interests is, as the cases cited by my learned friend, Lord Roskill, establish and common sense itself dictates, a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.

 I actually prefer Blackstone himself on the topic:

In the exertion therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion   be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a   just and severe account.

So if you are not happy about SAMs in your back yard - complain to your MP, don't consult lawyers.......

Sunday 4 March 2012

Closed Material Procedures....a necessary evil

I have blogged about this subject before - see here.  I have now read lots of material from others on this subject including from the Special Advocates and Liberty.  But nobody seems to be setting out an alternative to CMPs.  Close Material Procedures (CMPs) are not good.  They are contrary to justice and unfair.  They are however, necessary.  If we do not have CMPs in civil cases then there will be 2 outcomes worse than CMPs:
1) HMG applying to strike out meritorious claims as being too sensitive to try or 2) HMG settling unmeritorious cases.  In 1) the wronged citizen goes uncompensated and in 2) the taxpayer pays out when nothing wrong has happened. Neither are tolerable.

 PII is not the answer - that is a shield to keep sensitive evidence out of proceedings - it has nothing to do with permitting the admission of sensitive evidence to assist the claimant or HMG. In other countries lawyers are subject to security vetting and are permitted to see sensitive evidence; but must undertake on pain of jail not to show the evidence to anybody else, including their own client.  Whilst CMPs do undoubtedly create the very difficult situation of one party being represented by 2 sets of lawyers, 1 set with whom they cannot communicate but who has seen the classified evidence and 1 set with whom they can communicate but who cannot see the evidence;  but this must be preferable to being represented by lawyers who have seen the evidence and can communicate with their client on all topics save for the classified evidence.  If some Special Advocates feel frustrated at being unable to seek instructions; imagine how frustrated they would be if they were also that person's only lawyer.

CMPs at least permit all the evidence to be aired before the Court and Tribunal, no matter how sensitive, meaning that the result is far more reliable and just than if the evidence had been withheld - true justice may not have been seen to have been done, and result may have been different if the Claimant's own lawyers had seen the evidence rather than the Special Advocates - but at least there was an attempt at justice; rather than an abdication of it by use of PII or stike outs.

 I agree that there must be vigilance to ensure that CMPs are not used where there is an alternative (gisting etc) and where there is no any actual national security case (as highlighted here)....and I also think that Courts and Tribunals must decide when and where to impose CMPs (they must not be imposed by Ministers unilaterally as can currently happen in Tribunal cases) - although the Court/Tribunal must show some respect to HMG on national security matters.

CMPs are unpleasant, frustrating and I wish there was something else - but in the absence of anything else, we cannot continue to tolerate the regime of PII (which keeps evidence out of proceedings); strike outs of meritorious claims (which keeps good claims out of Court) and unjust settlements (which puts the taxpayer out of pocket for no reason)......if any of the critics of CMPs can come up with a viable alternative....let them tell us.......