Computer Says NO. Go To Gaol. Just Another Day At The Post Office.

Computer Says NO. Go To Jail. Just Another Day At The Post Office.

Am I out of step with most News reporting agencies in feeling that one of the most astonishing Court cases in recent years was largely unreported as it trundled along over the past decade? Or maybe I just missed it.

What have you seen in the media before this year about the saga of the Post Office and its IT system called “Horizon”? Ring any bells?

In around 2000 this system written by the IT Company Fujitsu began to be rolled into use in Post Office branches, that is, into the sort of Post Office which is based inside a privately owned shop, perhaps a newsagency or cafe.

Therefore, the system was used by subpostmasters who were really just shopkeepers. And as shopkeepers, they did not network with each other or have any Union or trade body looking after them. Each of them was separate, and on their own.

The new Horizon IT system began to cause them problems. On reporting to the Post Office, each was told that no-one else had experienced any problems, and they must be doing things wrongly.

So in 2005 on her first day of training in her new post office (which she had paid £250,000.00 to buy) Mrs Seema Misra watched as the Post Office trainers ran the system for her. At the end of the day, the system showed a £150.00 shortfall which was dismissed by the trainers as just one of those things. “It’s never penny accurate”.

Every day following, the system showed a shortfall of £200.00 or so. It is the contractual responsibility of subpostmasters to make good all shortfalls from their own money. Mrs Misra got no help from the Post Office. She got threats.

In January 2008, pregnant, she was sent to jail. Say that again? Sent to Jail. Pregnant.

Found guilty of theft of £74,000.00 and false accounting. Here is -a link- to a case commentary which concludes with the timetable to the Crown Court Hearing. If you click on the links in the timetable you can read the transcript of the court proceedings on each day.

So far as false accounting is concerned, she admitted that. Her reasoning as she explained was that, whilst the shortfall apparent in the accounts was the result of computer rogue errors and were not her fault, they would result in her being required to “repay” tens of thousands of pounds if she did not try to disguise them in some way.

She did however plead “not guilty” to the charge of theft, and that is what her trial was about.

I would also point out a difference between the evidence given to the jury in her trial, and the evidence which is usually given to a jury in an “embezzlement” trial.

That is, there seems to be no prosecution evidence or allegation of what Mrs Misra is supposed to have done with the £74,000.00 she is accused of having stolen – where she had put it, or spent it.

Usually when a person is charged with embezzlement, the money is traced. Often that in itself is the best evidence of the thefts.

Indeed it is usually by examination of the accused person’s bank account that the existence of large amounts of unexplained money gives rise to, or justifies, suspicions. You know the sort of thing – the headlines say “Trusted employee spent stolen millions on girls, drink and fast cars” (c.f. George Best – “the rest I just wasted”. Sorry).

This sort of thing – link- thief buys jewellery and gambles and sends the kids to private school and goes on holidays and buys a new car or –link- where the somewhat fabulously named US Attorney Mr Anthony Eugene Cheatham “used the money to pay his bills, write personal checks to himself and family members—and make payments to other individuals from whom he had previously taken money”.

As an aside, – Would you go to a lawyer called Mr Cheatham? He must be quite charming to leap that hurdle.

But – No such money was traced in this case. No allegations were made: – of living beyond her means, of nice holidays new cars or works of art. Do you think, – Because, there never was £74,000.00 gone missing? Durr.

All she knew was that she was on her own, she had no knowledge that this wasn’t happening only to her. But the Post Office did. There were lots of others.

Here is -a link-  to the Telegraph article highlighting her case and other cases.

I find it hard to imagine what it must feel like. To invest £200,000.00 of my own money (£67,000.00 on a mortgage) into a business where the computer says each day I owe £200 and each day and each day. Would I sleep? Then to be arrested, then sent to jail.

Not just her though :-

Mr Thomas. Age 72. Jailed.

Per Wikipedia, Ms Jo Hamilton was faced with having to repay the non-existent sum of £36,000.00 and because she couldn’t afford it and hadn’t had the money she tried to “falsify” the already false deficit. She pleaded guilty to fourteen charges of false accounting and re-mortgaged her house to repay money which never existed.

Rubina Nami jailed 12 months. Lost her house. Slept in a van upon release.

Private Eye states one person has committed suicide.

In 2011 this state of affairs was reported upon in Private Eye magazine. The journalist runs a Blog and is far more explanatory than I could be – he has been writing about the case for years here is – a link-.

In spite of the fact that the Post Office had been instrumental in the jailing of its subpostmasters for years, it seems that only in 2015 did the Chief Executive Paula Vennells – (who earned five or so millions of pounds whilst in post and who has not been sent to jail) – instruct her employees to enquire of Fujitsu whether the system was truly secure or whether external logins to its Horizon System were possible.

Its Court pleadings say ”neither Post Office nor Fujitsu has the ability to log on remotely to a horizon terminal so as to conduct transactions”

Not True.

It has become clear that the Post office has for years been desperate to defend the indefensible. Faced with real and obvious evidence to the contrary its position appears to have been – “Fujitsu say there’s nowt wrong with what we bought. So you must all be liars and jail’s the place for you – off you go.” I paraphrase.

Presumably because a billion pounds or so has been spent upon this system.

Possibly because it would feared that losing a court case would eventually result in the privatisation of the Post Office.

So for over one decade if not two decades it has been telling lies or allowing Fujitsu to do so without proper consideration of the facts and exhibiting, in the words of The Honourable Mr Justice Fraser “Institutional Obstinacy” amounting to repeated pig headed assertions that their system “cannot be to blame” and simply failing to accept all or any factual accounts by all witnesses to the contrary.

Because there is now a reported case. In fact the Post Office has agreed to pay compensation/settlement money of £58 million or so to – how many do you think? The number is 550 subpostmasters.

Five hundred and fifty poor sods. Five hundred and fifty lives disrupted for year after year.

The written judgment is a very good read. –Link Here- You can perhaps tell whether the Judge is furious. The levels of politeness and overt fairness have gone into overdrive. He is scrupulous as can be and his judgment runs to 1030 paragraphs over 313 pages.

After delivery of it he is reported to have said

“Based on the knowledge that I have gained both from conducting the trial and writing the Horizon Issues judgment, I have very grave concerns regarding the veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system. These previous proceedings include the High Court in at least one civil case brought by the Post Office against a sub- postmaster and the Crown Court in a greater number of criminal cases, also brought by the Post Office against sub-postmasters and sub-postmistresses.

“After very careful consideration, I have therefore decided, in the interests of justice, to send the papers in the case to the Director of Public Prosecutions, Mr Max Hill QC, so he may consider whether the matter to which I have referred should be the subject of any prosecution.

“It will be entirely a matter for the DPP what, if anything, he does in respect of this referral…I wish to make it clear that the specific subject to which I will drawing the specific attention of the DPP relates to the evidence on previous occasions of Fujitsu employees.”

There was a time when the person in charge of a monumental balls-up requiring a negotiated settlement of £58m. would resign. Never mind personal responsibility or culpability even if there were none. As a matter of honour.

Wikipedia tells me Paula Anne Vennells, CBE, FRSA is “a British businesswoman and Anglican priest. She was Chief Executive officer of the Post Office Limited from 2012 to 2019 before assuming the chair of Imperial College Healthcare Trust, one of the largest NHS hospital groups”.

Yes, she’s running hospitals now.

By the way, and not before time, it would appear that the Horizon system is now working properly. So that’s all fine.

Here is a suitable song to cheer us all up – link –

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

 

Apostilles And So-On – Louise Morley Explains

Legalisation guide – what is Legalisation, do I need to legalise my documents?

We see many clients who are told by their lawyers abroad that they require “legalisation of their documents” but are not entirely sure what “legalisation” means.

In a nutshell –

“In international law, legalisation is the process of authenticating or certifying a document so a foreign country’s legal system will recognize it as with full legal effect”

We usually get requested to “obtain Apostilles on my documents” – depending on what your document is depends on the process that will need to be carried out.

For example, if you have a Degree Certificate and a Basic DBS Certificate and a TEFL certificate (these are the usual certificates we get asked to legalise for use in PR CHINA) – then we are not able to submit them directly to the Foreign Office for Apostilles.  We first of all have to Notarise the certificates as genuine then we can submit the certificates to the foreign office for the first part of the legalisation, obtaining Apostille stamps (Apostille stamps are issued by the British Foreign & Commonwealth Office and confirms that a signatory on a document is genuine i.e that of a Notary).  Once the Apostilles have been obtained documents for use in PR CHINA also have to be submitted to the Chinese Embassy for their stamps.

If you have a General Records Office certificate i.e Birth, Death or Marriage Certificate then these certificates already bear signatures/stamps/seals of a public official and theoretically there is no requirement by us to notarise the certificates as the Foreign Office will apostille the certificates and confirm that the signature, stamp or seal is that of a Public official.

Depending on which country your documents are to be used in legalisation requirements will vary.

If you are unsure, as to how to legalise your document(s) then get in touch – we can assist – we can advise as to the usual requirements for the country you intend to produce your document(s) in.

If you are not sure whether notarisation is required to enable an Apostille and/or embassy stamp to be obtained, again get in touch – I can assist.

Currently the Foreign Office are taking around 5 working days to Apostille documents and get them back to our office.  If the matter is more urgent than we do offer an expedited service whereby we can obtain an apostille and have it back in our office in 48 hours.

Below is a link to image of what an Apostille looks like:

Apostille Image

Please do get in touch with us to discuss any aspect of this Blog or to chat with us if you think we can assist you in any way at all.

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

 

 

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