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