Right To Be Forgotten? Probably A Pipedream? Best Assume You Are Being Watched 24-7?

Right To Be Forgotten? Probably A Pipedream? Best Assume You Are Being Watched 24-7?

The papers and other media were full of chat about “The Right to be Forgotten” a while ago.

I put in my tuppence-worth at the time here -Link Here- 

The issue with the “Right to be Forgotten” is whether it is right and proper for a search engine – Let’s say Google – to be as good as it presently is at remembering everything. Forgetting nothing.

We might read in a Newspaper or see on the television a report about someone being arrested and fined at maybe age 19 for trying to travel on the train without a ticket by using someone else’s ticket. A fraud yes, a crime. But in England the State has decided that after a while – how long a while depends upon the sentence imposed –  this person should be allowed to put it behind them and get on with life. The Rehabilitation of Offenders Act and Article 8 of the European Convention on Human Rights allow such matters be deemed “spent”.

So twenty years later our now  39 year-old can expect to be allowed to apply for (most) jobs, or apply for an insurance policy, or to open a Bank account, without making any mention of the train business.

Fine, and what is not needed at all, is Google shouting – “Yebbut what about the train fare dodging.”

Because no-one goes to the library to try to find a random newspaper to see if there is any mention of their job candidate. There is no real convenient mechanism for doing that. Therefore in the world in the last century, stuff got forgotten and that, in the matter of rehabilitation, is the way we liked it.

Yes, there are professional clippings search agencies but for most people they aren’t really on the radar.

Nowadays though Google:- Fred applies for a job, does really well at the interview and the boss decides to appoint him.

But as everyone does nowadays the Boss thinks – let’s get the phone out for a quick Google search of his name.

Blimey! He doesn’t buy his own train tickets he’s a wrong un.

Here is a recently reported case with a twist. –Link Here-

It was brought against Google by a person who identified himself only as ABC. He had been convicted in 2014 of wrongdoing, and presumably the court did not deal with him harshly because by 2016 the offence was “Spent”

ABC is now in business as an investment facilitator, raising equity for new ventures. If he is to have success he is very reliant upon being trusted with money.

And his complaint is that his potential investors are being deterred from trusting him because when they Google his name (as you would, wouldn’t you, before handing over any proportion of your life savings) they are confronted with screens full of reports of his offending. Which is “Spent”.

But of course might as well not be spent if Google won’t stop remembering it.

The Twist I mentioned is that ABC seems to be well aware of the “Streisand Effect” -Link here-

Basically the effect is that human nature is to be inquisitive. Nosy. Prurient. So ABC knows that if he goes to Court to stop Google doing things, his court case itself now becomes new “news”, which will therefore be reported and turn up on Google links to his name.

And if his Court case is news, and people see that Fred Smith is trying to stop Google giving details of his naughty past, then unlimited numbers of people are going to go on Google to see what his secret actually is.

And all the cases of this kind show up anyway on a website run by Google, called Lumen, which keeps a record of all of the “takedown requests” made to Google.

So the effect of seeking anonymity and to be “forgotten” is more often than not, to have the internet bathe you and your history with a brighter searchlight.

In ABC’s case the Court had confirmed to him that his personal identity need not be shown on the Court papers and records. No doubt he wondered – “how are they going to do that? I can’t win my case without disclosing the details of what I am complaining about, and I do not trust that all of the details will be kept secret.”

So he has refused to identify himself to the Court at all.

And eventually, the Court has told him to get lost.

I can sympathise with the Court, which has rules to follow, with ABC who I can see has good reason to seek to hide his identity, and with Google, which has a right to know who is suing them.

The fact of the matter is that the youthful discretions which are now skeletons in the cupboards of many respectable older people whether shoplifting, cannabis, or driving a pal’s car without insurance because you couldn’t afford it as a feckless teenager, or even a regrettable haircut, have generally successfully been forgotten.

But for the current generation of youngsters, the chances are that this is no longer possible, and perhaps very able people who could have gone on to be eminent – lawyers, surgeons whatever, will never be allowed to put teenage stupidity behind them. Probably the right to be forgotten will be a pipedream.

So be good, boys and girls. These days, it’s certainly not only Santa who is watching your every move.

A fine song here –Never forget you-

As ever, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com  and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also visit our website http://www.atkinsonnotary.com

 

This Court Case was a Car Crash for the Plaintiff.

This Court Case was a Car Crash for the Plaintiff.

A year ago I wrote a blog about highwaymen in 1725. Here it is – Link here –

It referred to a man – an armed robber on a horse -who was so incensed about his grievance when his partner galloped off with all the loot that all common sense flew out of the window. In his case the grievance was that his partner in crime had “cheated” him.

Yebbut, cheated him of his share of stolen property.

Long story short, he took his mate to court, explained what had happened, and they were both hanged.

LOL.

The point I was making about it was that it seems to be that human nature is much the same now as it ever was. Greed or desperation or a resentful sense of entitlement shuts down common sense across the centuries.

Here is another example, the case just decided in 2019 is a judgment as to liability for a car collision in 2016.

The case was brought by the driver of an Audi who collided with a Honda car. And, the Honda was stationary by the side of the road. The Honda was indeed half off the road, its nearside wheels were on the pavement. The Court heard that the width of the road was such that the Audi could have driven past the Honda entirely in its carriageway – i.e. without even crossing the centre white-line of the road.

In her claim the Audi driver explained that the Honda had been stationary at first as she was approaching but then immediately before the collision suddenly reversed further into the carriageway, too suddenly for her to give it the additional clearance which it now required.

The transcript of the case from the Law Gazette website is here – Link – and I call it a jolly good read. Just the thing if you are wasting time at work and want to call it legal research.

One has to read between the lines and beware of jumping to conclusions. But it is odd, I think, to claim that a car reversed into your path when it seems clear from the evidence that there was no person in the driving seat of the Honda. The reason the Honda was at the roadside was because the driver of it had feared that one of the tyres had deflated, and he was outside the car inspecting the tyres when an Audi drove straight into it.

The Honda driver (not) and his witnesses attended Court.

The Audi driver had produced three witness statements; each of those witnesses said that the Honda had suddenly appeared from a driveway in reverse, into the road in the path of the Audi. They each said so in almost identical phrases.

And Yet – this was not what the Audi driver said, to the Judge in Court.

And again Yet, none of the three witnesses supporting the Audi driver attended the Court hearing.

Significant doubts seem to exist as to whether any of them were actually present at the collision scene at all.

And even more Yet, all three witnesses appear to have given evidence in an earlier case in 2013. The solicitors acting in that case, were the solicitors acting in this case.

That 2013 claim was referred to the solicitors by the same “Accident Claims Management Company” as referred the present case and who hired a car to the present Claimant.

And may I add, if the Audi claimant had won this case, the claim for car hire charges over the nearly three years since the accident, now stands in excess of £400,000.00.

What sort of car sets anyone back £400,000.00 for three years use? A Magic Flying Car? Be useful for avoiding legally parked Hondas I suppose.

There used to be a doctrine that a Claimant must mitigate its loss. In this case buying a Bentley (other expensive models are available) for around £200,000.00 and selling it after three years for say £75,000.00 would have been the miser’s option.

It is, depending upon your view of matters, entirely your opinion whether it is a cause for regret that now the Audi driver will have to pay £400,000.00 plus Court Costs. And perhaps some might feel that it is a cause for regret that no highwaymen are hanged in England anymore.

I am a Notary. No opinions here!

Song here about crashing, not necessarily cars -Link Here-

As ever, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also visit our website http://www.atkinsonnotary.com

Get Out Of Jail? Two Recent Cases

Going to Court without a Lawyer is rarely the best choice but of course it is expensive to instruct a lawyer to argue for you.

So if there is no legal aid available, having a lawyer is often not a matter where a person can always make a choice.

There are two cases recently reported which touch on Litigants in Person, and I leave to you what lessons if any we learn

As I have written before, – link here – changes in Court rules since reforms recommended made by Lord Woolf were first introduced around 1997, were intended to make the whole process of dispute resolution through the Courts easier for everyone. And if they made the process easier for non-lawyers, then this in itself was an encouragement for people to go to law without representation. – It’s easier now, we can save on lawyers’ fees.

Of course, nothing works out according to plan. Schemes? – They gang aft agley **.

Judges have begun to learn very clearly that lawyers in courts actually benefit the Court at least as much as they benefit their own clients. Actually Judges always knew that. Lord Woolf’s agenda was very political.

Stated aims of the 1997 rules were to ensure cases are managed expeditiously and within the framework of strict timetables.

But of course the rule changes only changed the rules. So only the procedure is easier – not the Law itself!

Perhaps it is the result of the inherent politeness of most English Judges, but my own experience of cases where a party has no lawyer appearing is that long-winded misguided irrelevance is the dish of the day. The Judge has a real problem. In the tsunami of hearsay and digressive grievance being read aloud from thirty pages of green ink by a litigant in person, might there perhaps be an actual injustice which needs to be redressed?

The experience of Solicitors and Barristers who do appear in Court for one side, is that they are often asked to assist the Judge by actually helping the other side if the other side is unrepresented. And that’s not what their own client wants them to do is it?

Case of Mr Su. This is a man who has been sent to jail for contempt of court. He had breached Court Orders – the record of the case suggests that he had been instrumental in dissipating unexplained assets of over €27 million and he had been sent to jail. He had then sacked his lawyers and failed to meet the statutory deadline for filing any appeal.

Being, now, a litigant in person he sought to claim an exemption from the strict date requirements which any qualified lawyer would have been required to meet. Unanimously, the Court Judges denied his claim. He is still in jail.

I don’t know what you think, but the general consensus among lawyers is -Three cheers for the Judges. They have stated that the rules are rules. You have to obey them, Mr Su.

Link to the case – here –

Next up, the case of a Mexican mother Ms Ortega Zeifert who was illegally in England having overstayed her visa. She had refused the father of her children his right to access to the children. If you read the case judgment you may feel that she has disobeyed Court rulings time and time again and she was sent to jail.

However, when she was sent to jail on 2nd October she was unrepresented by any Lawyer in Court. A difference from the Su case is that Su had chosen to be unrepresented. Ms Ortega Zeifert had not chosen to appear in Court without a Lawyer to plead for her liberty. Indeed as is mandatory (but still was only achieved after a muddle inside the Legal Aid Agency which appears to have misunderstood its obligations – I did mention, the Law is complex, didn’t I?) she in fact had the benefit of the grant of legal aid.

So why was she a litigant in person when she had a legal aid order to pay for representation?

It appears that the Court would like to know as well. They have ordered the Solicitors to write to explain. The reason according to those Solicitors as reported in the Law Society Gazette is that on the date she was sent to jail, 2nd October 2019, they had been unable to find any Barrister willing to take a case in the Court of Appeal.

Of course there are any number of Barristers willing to take on a case at the Court of Appeal. Funny thing is, they do it for money. And the amount of money they require is more than the Legal aid Board was willing to pay. Jail then. (Not that the best or best-paid Barrister in the land would have been sure to avoid jail for her, of course)

They wrote “While eventually experienced counsel was found to take the case on at the Court of Appeal (…on 13th October..), that barrister acts pro bono on some occasions and it is wrong, where the liberty of the subject is at stake, for proceedings to be, we suggest, obviously inadequately funded.”

That is where we are. Yes Legal Aid has been granted. Just don’t expect it to pay a rate which a Barrister will accept.

In her case, because she wanted to be represented and because the Law says that if she wants to be – then she must be, and because she was entitled to Legal Aid (money from you and me by the way) but the Legal Aid money was not enough for a Barrister who works for money, therefore she was released from jail. Got that?

Link to the case – is here –

So a mother who is desperate for whatever reason not to return to Mexico has been released (perhaps only temporarily) from Jail because she was sent there unrepresented. Because jailing her was unfair.

And Mr Su who has failed to account for the whereabouts of multi millions and has disobeyed asset freezing orders, stays in jail. Because at his committal to jail, he was represented by the best (and perhaps very expensive) lawyers available. Because jailing him was fair.

It all makes sense.

As ever, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also visit our website http://www.atkinsonnotary.com

** To A Mouse, On Turning Her Up In Her Nest With The Plough

1785

Wee, sleekit, cow’rin, tim’rous beastie,
O, what a panic’s in thy breastie!
Thou need na start awa sae hasty,
Wi’ bickering brattle!
I wad be laith to rin an’ chase thee,
Wi’ murd’ring pattle!

I’m truly sorry man’s dominion,
Has broken nature’s social union,
An’ justifies that ill opinion,
Which makes thee startle
At me, thy poor, earth-born companion,
An’ fellow-mortal!

I doubt na, whiles, but thou may thieve;
What then? poor beastie, thou maun live!
A daimen icker in a thrave
‘S a sma’ request;
I’ll get a blessin wi’ the lave,
An’ never miss’t!

Thy wee bit housie, too, in ruin!
It’s silly wa’s the win’s are strewin!
An’ naething, now, to big a new ane,
O’ foggage green!
An’ bleak December’s winds ensuin,
Baith snell an’ keen!

Thou saw the fields laid bare an’ waste,
An’ weary winter comin fast,
An’ cozie here, beneath the blast,
Thou thought to dwell-
Till crash! the cruel coulter past
Out thro’ thy cell.

That wee bit heap o’ leaves an’ stibble,
Has cost thee mony a weary nibble!
Now thou’s turn’d out, for a’ thy trouble,
But house or hald,
To thole the winter’s sleety dribble,
An’ cranreuch cauld!

But, Mousie, thou art no thy lane,
In proving foresight may be vain;
The best-laid schemes o’ mice an ‘men
Gang aft agley,
An’lea’e us nought but grief an’ pain,
For promis’d joy!

Still thou art blest, compar’d wi’ me
The present only toucheth thee:
But, Och! I backward cast my e’e.
On prospects drear!
An’ forward, tho’ I canna see,
I guess an’ fear!

Is An Email A Document? Can It Be A Signed Document?

CAN AN EMAIL BE A DOCUMENT WHICH IS IN WRITING AND SIGNED?

1 On the One Hand OF COURSE NOT, get a dictionary.

2 On the other hand, YES OF COURSE IT CAN why would you even ask?

What do words mean?

Always a problem for lawyers. As we know, “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

So in order to understand the meaning of words, do we have to use a dictionary? Or do we have to guess what the person using the word thought was its meaning?

Here is a link  -Click It -to a case in which Judges reminded themselves of just such a discussion in a case as long ago as 1803. The Freehold of a Pub in Limehouse London, served notice upon the innkeeper who was his tenant, stating that the lease of the premises was over and the Pub had to be vacated.

The Owner stated “I give you notice to quit the premises which you hold of me. . . commonly called . . . the Waterman’s Arms.”

OK but problem. – The presumably wealthy owner must have owned several public houses and got confused as to their names. What he had in mind was to end the tenancy of The Bricklayer’s Arms.

He send the notice to the tenant, at the Bricklayer’s Arms. But the Notice said, get out of the Waterman’s Arms.

The Judges said in 1803  – “By reference to the background, the notice was construed as referring to the Bricklayer’s Arms. The meaning was objectively clear to a reasonable recipient, even though the landlord had used the wrong name.”

So what’s this, used the wrong word? – OK, no problemmmo we can ignore that and pretend you didn’t.

Reginald Perrin, when he was approaching his breakdown, took this approach. He just used the word nearest to hand when the correct one escaped him. The word nearest to hand was usually parsnip. [Sometimes, two – fish slice].

OK so that’s the law, you can use the wrong words as long as we can all work out what you mean.

Yebbut and contrariwise, if the Owner has named the wrong pub, that didn’t matter, but if he had served the notice too late under the terms of the lease, that would matter. Because if a lease says six months, it doesn’t mean six weeks, does it.

“Months” not “weeks”, they’re different words. Oh look, see what I did there.

From the same 1997 case in which the 1803 case was discussed, Lord Hoffman said that ignoring the written terms of an agreement was quite different from using the wrong words. He said “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease”

OK so now we all understand, let’s move on.

Contract law:-.

If I say to you, “can I buy your car tomorrow for £2000.00” and you say “yes, come round at eight to pay me and drive it away”, we have a contract. We might even shake hands, doesn’t matter if we don’t.

But English law has always viewed contracts involving rights in Land as requiring more formality than contracts for cars and goods.

Here is the law for a land contract:-

Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989

It provides:

“(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all of the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

…….

(3) The documents incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

OK, we’ve got that. IN WRITING. In ONE DOCUMENT or in TWO DOCUMENTS EXCHANGED

And

SIGNED.

The law was created in 1989. I was using Lotus Notes in 1989. It enabled me to send emails to a limited number of people in a group all using the same program. The idea that the formalities of a contract for the sale of land as stated above could be met by the transmission of emails would not have held much sway in 1989 I suggest.

So using the Humpty Dumpty definition, should we discover what the words mean by looking to see what was in the minds of the legislators in 1989? If so I’m thinking – written or typed paper, with signatures in ink. Certainly that what I was taught in seminars in 1989.

So how did the Courts decide in This case link here -Click it- when asked whether an email could be a written document and whether it could include a signature?

Simples, YES.

An email will pass the test of being “in writing” and being “signed” if the “signer” includes in it “their name details with the intention of designating the party to be charged, and for the purpose of making a contract which should be binding”.

So there we are, it has been settled law from as long ago as 2006 that a string of emails which are never actually printed out, can be both in writing and signed.

Even though parliament did not say this, and are presumed not to have used the wrong words in the parsnip sense, nor envisaged this result as even a possibility.

So sometimes, it’s not the words  that mean whatever Humpty says he wants them to, – it’s the Law being whatever the Judges decide that acceptable commercial practice requires the Law to be, never mind either the words or the meaning of the relevant statute.

Anyway surely 2006 was long enough ago for the message to get through to everyone, that if you don’t want your email to be capable of being a binding contract in England or Wales  , just add the phrase “Subject to Contract”. I mean, you can set it automatically.

Though it may seem a bit odd to your non-lawyer friends if you do, when you email them to say, “See you in the Pub at 6.00 pm – subject to contract.”

Why am I telling you all this? A friend has sent me an email with this link . -Click It- A case where the sending Solicitor intended apparently that his email should not be binding upon his client – but Oh Dear – it was.  The full case is here This Link -click it- and it graphically confirms that emails are definitely well worth the paper they’re not written on.

And in spite of what some email services might tell you, once an email has been sent, it’s not retrievable.

And here’s a thought – The Royal Mail is still open for business. -Please Mr Postman- Click here

As ever, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com  and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also visit our website http://www.atkinsonnotary.com

 

Make a Will – Or – Fighting With The Family (not the film)

A month or so ago I wrote, as I often do, that everyone should make a Will.

I presume, if you have not made your Will by now, that you did not read the Blog – so here it is –

If you did read it, no doubt you have made a Will. Good. I do not think that there has ever been a case where the distribution of a person’s Estate (their belongings after death) has been rendered more complicated by the fact that they left a properly thought-out and properly worded Will.

Whereas of course, the law reports over the centuries provide hundreds of examples of the confusion and stress and bizarre consequences that can be the result of failing to do so.

Which is not to say that I advise you to get out your pen now and write your will on your own without good legal advice. Obviously a stupid will is stupid. I wrote about that too! Link here

Anyway the case I wrote about in June has now reached a Court decision. This is a very tragic case and a stark if extreme illustration that failure to make Wills can drive families apart.

Mr Scarle and Mss Scarle owned their house and money together. The legal term is “as joint tenants”. A feature of a joint tenancy is that the first joint owner to die is presumed by a “legal fiction” to have given (do the children say “gifted” these days? Why?) their share in the joint property to the other joint owner/s at the moment of death.

So if Mr Scarle died first, then Mrs Scarle owned everything previously owned by both of them, and if not, not. Contrariwise, if Mrs Scarle died first, then Mr Scarle owned everything previously owned by both of them, and if not, not.

Most unusually, the Scarles died in circumstances in which the order of death was not obvious.

There was no incontrovertible evidence. There had, for example, been no 999 call for the ambulance saying “My husband/wife has collapsed and died”. No CCTV indoors, no internet-linked Alexa or other devices listening to everything.

They were found, both dead, in their bungalow. Mrs Scarle was younger but had been frailer. Mr Scarle was ten years older but had been his wife’s carer, although evidence suggests that he was seriously declining in health just before his death.

An unusual state of affairs. Unusually these days that is. In wartime, not unusual when bombs were falling and whole families killed in an instant.

A serious problem in this case was, each of the Scarles had children of earlier marriages. So if Mr Scarle died first, the estate passed to his widow as surviving joint tenant, then to her child or children; but if Mrs Scarle had died first then it would be her husband’s issue who would inherit.

There had been cases before in English law when this set of circumstances had arisen.

Ironically a century and a half ago, the case of Mr Wing was a case where Wills had actually been made.

Mr and Mrs Underwood had made wills, leaving everything to each other if they should die before the other. But if they should be second to die then in their Wills they each left everything to Mr Wing.

They died in a shipwreck in the 1850s; it was not possible to say who drowned first.

In order to get his money from Mr Underwood’s estate, Mr Wing had to prove that Mrs Underwood had died first. And/or in order to get his money from the estate of Mrs Underwood, he had to prove that Mr Underwood died first.

So because he could not prove who died first, though one of them must have, and both of them had left him all the money if they died second, Mr Wing got nothing.

Was the law an ass? It was precise to the point of pedantry, I’ll give it that. A Notary loves a pedant.

At any rate it took 75 years for the law to change. In 1925 the following paragraph was enacted, s184 of the Law of Property Act

184 Presumption of survivorship in regard to claims to property.

In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

So now the present law provides the solution to the conundrum which flummoxed the claim of Mr Wing in 1855. If it is uncertain who died first then the law will tell you that the older person died first.

So Scarles’ case, Mr Scarle is 79 years and has died and Ms Scarle is 69 years and been found dead with her husband. Death had clearly taken place days before they were discovered. The manner of their last moments showed distressing turmoil, it may be that Mr Scale had collapsed and his wife had fallen in her rush to go to his aid. Or vice versa that Mrs Scarle had collapsed and Mr S. had collapsed in shock. Then the unfortunate couple could not move and in due course both froze to death

When found, both bodies were decomposing. There were different stages of decomposition reached but medical experts did not feel able to reach certain agreement based upon that, or based upon the effect of the different temperatures of the different rooms in which their bodies were found, as to the crucial question, who died first?

To my simple mind, it seems that in a case where doctors cannot agree with each other, (and in this case whilst the doctors called as expert witnesses reached different conclusions as to who may possibly have died first nevertheless each of them said that they could not be certain beyond reasonable doubt), then the condition of section 184 above is met. “Circumstances render it uncertain …..”

The value of the main asset, the bungalow, is reported in the papers to be around £250,000.00; the whole estate perhaps £300,000.00

The full report of the Court hearing is – HERE -.

Is it just me who finds that the whole esoteric exercise of arguing and discussing what is the “standard of proof” that something is uncertain which must be met by the parties is a bit of a waste of time? The daughter of Mr Scarle, in order to win the claim, had to show that s184 did not apply. To do this means she has to show that the circumstances of the deaths do not “render it uncertain” as to which spouse survived the other.

But how can you disprove that a state of affairs is uncertain? Presumably, by proving that Mr Scarle died second. But there was no witness who found it possible to say so with certainty. So if that is not a definition of being uncertain then I ask, what might be? And that was her own expert witness.

And whilst it is all very well and good as an abstract discussion of the law to suggest that Mr Scarle might have died second, and for the court to discuss in the abstract whether such a hypothesis, in order to succeed, would need to be “probably” correct – which is the “civil standard of proof”, or “correct so that we are sure” – which is the “criminal standard of proof” or something more or something in between – still it seems to me an exercise in hugely expensive futility.

Here we have two doctors saying they cannot be sure who died first. And if they both say that, then whether one of them tends towards a feeling that A died first, whilst the other thinks that perhaps the more likely is that B did, what they are both saying is that they are not certain.

And of course if there is no certainty, then s184 says that Mrs Scarle died first. Which is where we started.

So how this got all the way to Court appears to me to be an encapsulation of all that is wrong with not making a will. Because children do not want to miss out on £300,000.00, and they will fight lost causes, and fight each other even at the risk of spending all the money on lawyers. And then never speak to each other again.

Oh you say – our family is not like that.

Time for a song Link here  – Siblings song –

Remember, if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com  and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website http://www.atkinsonnotary.com

 

All Indian Powers of Attorney Are DIFFERENT – Discuss!

Powers of Attorney for India – What is the Law – Who is right?
Louise Scratches her Head and Ponders

We at AtkinsonNotary see many clients who need us to notarise a Power of Attorney (“POA”) for use in India. This is excellent and we are of course very happy to assist.

We must have in our records thousands of Powers of Attorneys, which have been successfully used in India since Chris Atkinson first became a Notary in 1993. The thing about them is, very few of them are the same!

We have dealt with thousands of POA documents for use in India and there simply is no consistent guidance as to how these documents should be completed and notarised.

For example below are some points on what we get asked to do- all instructions received from India:-

BUT – they are all different!

Which is correct? You tell me!:

1. Notarise the document with no further witnesses.
2. Notarise the document with two further witnesses in addition to the Notary.
3. Add a photograph of the Grantor.
4. Do not add a photograph of the Grantor
5. Add a copy passport of the Grantor.
6. Do not add copy passport of the Grantor
7. Add copy passports of the witnesses.
8. There is no need for the witnesses to provide identification.
9. Add a photograph of the Attorney. NB the Attorney is usually in India and the Grantor may not have a photograph.
10. Once the POA has been executed and notarised the Grantor is now to take it to the Indian High Commission for its stamp.
11. Once the POA has been executed and notarised it has to be sent to the British Foreign and Commonwealth Office for an Apostille stamp.
12. Once the POA has been executed and notarised then it is good and needs no further stamps can be sent directly back to India.
13. The POA should be signed by the Notary on the left-hand side of the document.
14. The POA should be signed by the Notary on the right hand side of the document.
15. The POA needs to be signed on every page
16. The POA does not need to be signed on every page
17. The POA has to be printed on special size paper
18. The POA has to be printed on special size paper coloured green
19. The POA has to be printed on special size paper which has been stamp duty paid in India
20. The POA may be printed on our usual A4 sized white paper.

And 21 and 22 and on and on and on….

As you can see, so many conflicting ways of proceeding and getting it wrong. Well, not wrong, but it seems that in India being right is not as important as preparing the document in the way the local Lawyer expects to see it. So what to do?

Well in relation to signing the document, our advice is that you should follow the guidance from your adviser in India whether they are right or wrong.

India is a large country and depending on which part of India you wish to deal with then the Lawyers in that area will have their own idea as to how the document should be executed.

The correct procedure however, as a matter of Law, is that India has in fact signed the Hague Convention and therefore documents signed in England for use in India are to be signed before a Notary and two independent witnesses. Once notarised and witnessed the POA then needs to be sent to the Foreign Office for an Apostille stamp (what is an Apostille stamp? – see – link here – to a previous blog and read under the heading “Legalise/Further Legalise/Authenticate”).

The fact that our clients get asked to obtain a stamp from the Indian High Commission once the POA has been notarised is wrong and is outdated – but you try and tell them in India this, you probably will not get very far in trying to change their mind. Unfortunately there are many Lawyers in India who do insist on the High Commission Stamp being obtained!

Chris has a fantasy that some Indian lawyers were taught their practice and procedures by their fathers, years ago, and are not interested in minor trivialities such as subsequent changes in the law.

In conclusion we don’t believe there is one correct way for dealing with POAs for India – and there are so many ways to get it wrong, by which I mean, to get it rejected whether or not it’s wrong.

Our advice is, be pragmatic. Take guidance from your own Lawyer/adviser in India as to the way in which your Power of Attorney should be dealt with in that particular area. Get them to draft the document and email or post it to England.

Basically, don’t bang your head on the wall in the cause of “doing it right” if doing it some other way is what will work.

Remember, if you need to discuss a Power of Attorney for use in India, or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com

GDPR – One Year On. The News? Who’s asking, It Might Be Protected Information?

GDPR – One Year On. The News? Who’s asking, It Might Be Protected Information?

“Do you know of a General Data Protection expert who could advise me and my business about it all?
“Yes, I certainly do.
“Oh thanks, so tell me, who can help me then?
“No, I can’t tell you who it is, that’s protected data.”

I trust that old chestnut has you rocking with laughter. (Lawyers’ jokes are not for everyone perhaps.)

I’m strictly a bit late for the “one year on” blog cliché. Still it’s only July 2019 and the implementation date of GDPR was 25th May 2018. So, what’s been occurring?

The first effect for many companies was a worried revision of their own processes and systems. Many of them were hampered by a less than clear understanding of what the new Data Protection Regulation actually said. Or Meant.

OK? What does it say? – Here it is for you to read – Link –

I guess you probably are not going to do that, now that you can see the length of the Regulation. If you have read it, you will see that the above is the European overreaching regulation. It includes a requirement that the member States must their own rules of implementation.

In the case of UK, this is the Data Protection Act 2018 – Link Here –

So let me guess, you’re not going to read all of that either.

It does turn out to be a bit of a problem, that by and large the Laws of this Country and most others are just too damn long. How can we all obey what we can’t be bothered to read and wouldn’t clearly understand if we tried?

Take email marketing. It is not made illegal by the GDPR. But if it is done, it must be done in accordance with GDPR. So, again, how can we know what to do if the wording is impenetrable?

Many companies, including the well-known Wetherspoon pub restaurant chain, simply decided they couldn’t be bothered with the whole game of soldiers and deleted their entire customer marketing database.

Others meet the problem by deciding that if some of the data they hold is subject to the Regulation, then they will be OK if they never share any of their data with anyone. Not the most helpful thing in my line of work. I am often instructed to assist a student seeking to work abroad, by checking then notarizing that their University Degree is genuine. If the degree was from a USA University, I have just phoned up and asked the question and the receptionist has checked the computer and told me the answer.

In England, not so easy! “GDPR, innit.”

So it’s a year on from the implementation of that Regulation you’ve heard about.
The English enforcer for the Regulation seems to be the Information Commissioner’s Office and its website is showing a list of the enforcement actions it has taken.

Here is – the link-

I don’t know about you but there seems something oxymoronic about the information revealed above.

It enables you and me to browse through it without any business reason to do so, perhaps whilst bored at work, to learn of the misdemeanours of others.

Yebbut, one of the things we can read about, is the prosecution of a person Wendy who browsed through her employers’ database “without any business reason to do so” and read records of anti-social activities of others.

It doesn’t say why she did it, chances are that she was bored at work and passed the time reading about the misdemeanours of others? Fined £300.00.

Anyway, the page lists various examples of behaviour which will get you in trouble if you do it. Many are the sort of thing you would expect to get people into trouble. A schoolteacher moving pupil data to his home computer. A medical centre worker accessing details of patient health records. An employee copying the employer’s computerised customer list – perhaps in contemplation of setting up in competition and canvassing those customers.

Of course the majority of breaches are more what you might expect on a larger scale – unsolicited PPI phone calls, unconsented releases of customer data to third parties some of them involving many million individual people.

And the page does also give a highlight to the fact that enforcement notices but not fines have been served against the Met police, and HM Revenue and Customs.

It seems that the use of computers to assist the Met in coping with gang crime in London goes beyond what is reasonable.

Your view? – On the one hand, gangs very bad, catch and prosecute gangs very good.

On the other, how many of us support blanket facial recognition and CCTV everywhere as China seems to be pursuing – too much computerisation very bad?

With HM Revenue & Customs the breach was a lack of clarity in obtaining “consent” to the implementation of voice recognition software on the helplines.

Neither the Met nor HMR&C have been prosecuted or fined.

Again, it seems me counterproductive anyway to fine the Police, who don’t generate any money, or the HMR&C who do generate it or at least collect it, but spend it on Hospitals and Benefits and all of the Public Infrastructure that is so hard up.

But what would or should the Information Commissioner do, if ever there is a breach by HMR&C which in their opinion is so blatant as to deserve a swingeing fine?

The rules allow imposition of a fine of 4 per cent of global turnover. I don’t know whether the Revenue has any turnover at all. If it does, presumably, that’s the amount it collects. Which in year ended 2018 was over £605,000,000,000.00.

Although even if there were a fine of £24 billion, where do fines go? Into the general tax fund. Not much point as an exercise, fining the Taxman. As you were then, carry on.

None of the above relates to hackers. But as recent cases show, the activities of hackers have resulted in breaches of GDPR which have far outweighed the seriousness of breaches caused by bored employees, or by ill thought-out systems.

Two cases tower above the rest – those of Wm Morrison Supermarkets, and just yesterday, British Airways.

In the first case, a malicious employee with a grudge against the supermarket released protected information about 5,518 workers there. Morrisons have been found by the ICO not to be in breach of its protection compliance obligations. They had done all they could pretty much, apart from requiring every computer operator to work in tandem with another in order to keep each other honest. The problem there was not in inherently weak computer system vulnerable to hackers outside the building. Even so they are still fighting to avoid having to pay damages.

In the second, -Link Here – British Airways is alleged by the ICO to have failed to maintain the level of computer security required of it by the GDPR.

What is their fine? Over £183,000,000.00.

ICO can point to the fact that the maximum penalty could have been in the region of £488,000,000.00. Still a little salty though.

The hope is that an unbelievably huge fine like this will start a rush to improve systems across industry as a whole to the immense benefit of the consumer. Or…..The cynical may simply view this as the first of many such monster fines, each providing a boost to the Government’s Consolidated Fund at huge cost to the long term viability and competitiveness of British industry.

My own unofficial poll indicates that the average citizen of Leeds is a firm believer in GDPR, strongly determined to keep their personal data a secret to themselves.

Why else do they never indicate their intention at roundabouts?

Here’s a song –Link Here-

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com