Neither A Borrower Nor A Lender Be?

Neither A Borrower Nor A Lender Be?

“Neither a borrower nor a lender be,
For loan oft loses both itself and friend,
And borrowing dulls the edge of husbandry.”

I can quote from Shakespeare with the best of you – provided I have a wi-fi link of course.

Leaving aside the final phrase, in line with the behaviour of governments and car purchasers everywhere, the first two lines sing to us loud and clear from four hundred years ago.

But as the case of Lejonvarn discussed below reminds us, never mind merely not lending. Also, giving gifts can result in a nasty bite.

In these frightening virus times we are mindful of others, and property adjusted people are wanting to help. Far be it from me to dissuade you. But just be aware that the true rewards for generous benefactors are more often found in heaven than in this life.

Tricky business though, being a good person. As the blessed Vinnie Jones showed us, Hands-Only CPR (cardiopulmonary resuscitation) can save lives. But he didn’t mention that it can and probably will break ribs. There are USA documented cases of folk having their lives saved, then suing their kind lifesaver.

-Link Here –

“In case of cardiac arrest resuscitation attempts should continue until adequate spontaneous circulation is achieved or until the death of the patient is ascertained. Nevertheless, these attempts may cause considerable injuries to patients, thus increasing rescuer’s exposure to legal risk.”

So you can opt to save a life, or worry about being sued for causing bodily harm. Your call.

The case of Lejonvarn is that of a generous person who gave of her knowledge and expertise, and presumably now bitterly regrets it.

It has been described as the case that just keeps on giving, at least to those like me who write Blogs.

Eight years ago – eight long and worrying years for Mrs Lejonvarn, an Architect, since her neighbours asked her for a favour. Perhaps they asked for a “little favour”. It’s usually a little favour. The most valuable lesson a professional can learn is, it’s never little.

When you hear the phrase, run. Run as though the Devil is at your heels.

Mrs Lejonvarn was too kind, or naive, to run away when her (then) friends Mr and Mrs Burgess asked for the little favour of assisting with proposed landscaping works to their large garden and grounds.

She did some preparatory work for them, free of charge. Works continued after she had left the project to the contractors and workmen on site.

The original case of Lejonvarn was the subject of a blog I wrote in 2016 – link here-

And the 2016 case report is – link here-

But in 2016 all that was decided was a question of law – whether Mrs L, who was not being paid, could be negligent in performing tasks out of the goodness of her heart, so that she could be made to pay compensation if things went wrong.

Well I think, I could have told her the answer to that. It is “Yes”. Of course, you have to be just as careful when you are working for nothing as when you are getting well paid. Next question? So round one to the Burgesses. But all that Court hearing decided was that it is possible to sue someone for bad work, whether or not you are paying them. It did not actually look at the quality of the work.

The case then moved to a final decision on the work itself, and I blogged about that in 2019 – link here-

And the Law Report of that second and deciding 2019 case is – link here-

The Judges found that Mrs Lejonvarn had no contract with the Burgesses, so she was not contractually responsible for their losses nor under any contract liable to compensate them for what appears to be little more than rage at a disappointing outcome to their garden plans.

Not on a contractual basis.

And not on a Tort basis (negligence) either, since the Court decided that the evidence before it actually was that what Mrs Lejonvarn had done, was done well, and there was no reason for any complaint about it. If she had fallen out with the Burgesses and walked away before the work was finished, that was entirely her right, and if the works went to hell after that, it was nothing to do with her.

As I wrote in that blog, “Of course the next argy bargy will be – who pays the extremely substantial Court costs?”

Well now we know, and the decision looks at first glance to be a massive win for Mrs Lejonvarn. So hurrah for that, and you might need a heart of stone not to feel cheered up by a judgment which means that Mr and Mrs Burgess will now not only have to pay their own lawyers, but also the full amount of the fees of the lawyers for Mrs Lejonvarn – which will be around £725,000.00.

Say it quickly, but it still doesn’t help does it, it’s a fortune.

I say at first glance – because of course Mrs Lejonvarn has really won nothing except, at last, peace of mind. In order to defend herself from the outrageous claims her erstwhile friends have blighted her life with, she has incurred lawyers’ fees of £725,000.00. So of course this judgement won’t even put a penny in her own pocket, it won’t provide her with any financial compensation for years of worry: – it just means that her lawyers will get paid by the Burgesses.

However, at least it does mean that. It is an award of costs on the “indemnity basis”.

And if you are not a lawyer, you may be thinking well, that’s how it goes. There is a Court case, and the loser pays all the bills. It’s only fair.

As the lawyers know, that is not how it usually goes at all.

Usually the loser will be ordered to pay the winner’s costs – yes – but calculated according to something called the “standard basis”. Which typically means only about 60% to 75% of the actual bill if that.

A case has to be considered by the Judge to be “out of the norm” before the winner will get every penny. I suppose the idea is that rich defendants should not be able to scare away a claimant by using the most expensive lawyers and barristers and expert witnesses without themselves taking the risk of paying a substantial amount of those fees incurred even if they win.

So in the 2020 case just now decided, the issue was only -”Who should pay the Costs, And what percentage of the costs?”.

So, here is -the link- to the Law report on this year’s hearing, the one about costs

Was this case “out of the norm” so that Mr Lejonvarn should get all of her costs paid? Yes indeed. The Judge said that the Burgesses had pursued their litigation well beyond the point of any reasonable justification.

He approved the decision of the earlier Judge, that the Burgesses were not being rational, they had lost all sense of proportion, and they were blaming Mrs Lejonvarn for stuff that had “gang agley” long after she had walked away from their troublesome garden.

And this, being a case resulting from “an irrational desire for punishment”, which was unlinked to the merits of the claims themselves, “is precisely the sort of conduct which the court is likely to conclude is out of the norm”.

So the case that just keeps on giving, has given me scope to write three blogs. Surely it’s over now? And each time I have looked at it the motto has been the same – don’t do favours. No good deed goes unpunished.

That of course, is strictly legal advice. Your good heart may tell you different.

Nice song here –Nothing is better, nothing is best. Take care of Your Health and get plenty of rest –

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

We Thought We Got Married? But We Can’t Divorce?

The Law of England is of course always changing, in order to reflect the fact that day to day life changes.

That does not mean that the Law can be considered to be whatever you want it to be. At least, not for the time being. I think there is still a consensus among the British that certainty in the Law is a good thing.

In the area of Marriage laws, in England and Wales, if you want to get married, there are certainties – rules. Rules as to your ages, your relationship to each other (you cannot marry your brother, etc.) whether you are actually unmarried (bigamy is a crime) etc.

If you are going to persuade the British state that you got married in England, you need to have a marriage certificate.

[I have blogged earlier about the chap who had never been to Ghana but found out that a ceremony there which he did not attend resulted in him being legally married in the eyes of the English Courts. -Link Here- – bit of an unusual one that was. This Blog is not about that!]

So eyebrows were certainly raised in 2018 by the judgment in the case of Akhter and Khan when Mr Justice Williams decided that a couple who had never married were in fact parties to a “void” marriage.

When Muslim believers attend a Mosque to marry each other in a Muslim country such as say Pakistan, the religious ceremony of marriage called the “Nikah” is effective to create their marriage. If that couple travels to live in England, the English Courts will accept that they are married. Because, it was a ceremony conducted in Pakistan where it resulted in a marriage recognised in Pakistan. And so when they come to England, they are of course still married and England accepts that.

But if it takes place in England, the Nikah alone does not create a marriage recognised in England. Because the rules in England are not the rules of Pakistan. This is well understood among Muslims in England and indeed many mosques here will not celebrate a Nikah unless a civil marriage has already taken place.

And in the case above, the wife was well aware that English law requires an English ceremony sufficient to result in an English marriage certificate and her evidence made it clear that she had joined in the Nikah on the clear understanding that it would be followed within a very short time by an English civil marriage.

So it is unlikely that the wife was truly expecting her application for an English divorce to be allowed by the Judge and the whole of the English legal profession was extremely surprised when it was. The Judge said in effect:- yes you aren’t married, but you can have a divorce – and also therefore the benefit of all of the English divorce laws as to the division of marital assets, and maintenance and child maintenance rights etc.

Here is a link to the case report –link here-

Once again – “you aren’t married but you can have a divorce”.

Really?

The Judge was trying to persuade himself that the Nikah alone resulted not in a “Non-Marriage” like everyone thought, but in a class of marriage called a “Void” marriage.

An example of a void marriage might be the marriage of Mr Rochester to Jane Eyre at the first attempt if it had ever happened, and happened in the present century.

Jane did not know that Rochester was already married to mad Bertha locked in the attic. She understood that her proposed marriage was real, would have assumed she was properly married if the ceremony had completed. If she later found out the marriage was void, she could get therefore divorced.

Contrast this with a “non-marriage” – say, one of the marriages in Four Weddings and a Funeral. Dur, These are film actors pretending. They cannot get a divorce.

But if our Judge thought a Nikah created a void marriage, I’m pretty sure no-one else did.

His decision comes as further example of the maxim that “Hard cases make bad law”. The wife’s situation here was no doubt a hard case.

Most unfair of her “husband” to take her through a ceremony which was morally and religiously binding upon her and upon her conscience – doing so in full knowledge that it had no legal significance in the Country where it took place unless it was followed by an English civil marriage which he had only pretended he would agree to. In the full knowledge therefore that he could walk away from her whenever he chose, free from sanctions of the English divorce courts.

If the refusal of the husband to proceed with the English Civil marriage had caused the wife to walk away from the relationship almost immediately, I do not think the Judge would have found it possible to find the marriage to be a void one or any kind of one.

But she did not seek to walk away immediately, in fact by the time of the case the “marriage” had lasted for eighteen years and there are four children.

But in trying to help the wife with her “hard case”, the Judge’s decision can now be seen to have resulted in “Bad Law”.

Because a marriage either is, or isn’t a marriage. It complies with the rules, or it doesn’t. It cannot be a sort of “wait and see” sort of thing, whereby a “non-marriage” morphs into a “void marriage” after what – a year? Two? Eighteen? A child? Four? It really cannot be that we don’t know whether we are married when we leave the ceremony, it depends what we do next?

So here is the outcome, hottish off the press – the decision of Mr Justice Williams has been overturned – Link Here –

The judgment has restored certainty. But it has of course returned participants in a Nikah to their previous very difficult position.

As her Counsel said – “in this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying he has thus left her in the situation where she does not have a marriage which is valid under English law …… Once she had embarked on the process going through the Nikah ceremony and consummating the marriage, the reality for this wife and I suppose many others in her situation is that [just walking away from the “marriage”] was not a realistic option for her. Thus if this marriage is not a valid marriage according to English law nor a void marriage she is left without the remedies which arise from divorce or nullity.”

Any answer I could suggest of course comes too late for this lady, mere hindsight. But my suggestion is that the English Civil ceremony should come first before the Nikah, or better still should be combined. Many mosques are approved venues for marriage and the Nikah and the English marriage can take place together. (It took me all of ten seconds to find the North Finchley Mosque webpage – link here-).

Of course the preservation of divorce rights is a bit of a pessimistic priority for getting married. Here is an optimistic song –Let’s get married, you can have a cat, just as long as it barks-

If you would like to speak to us about our Notary practice -what we can do and what we can provide – then please do not hesitate to visit the website http://www.atkinsonnotary.com or contact me or Louise Morley on 0113 816 0116 or email louise@atkinsonnotary.com to discuss further.

FAKE QUALIFICATIONS ARE NOW A BILLION POUND INDUSTRY

FAKE QUALIFICATIONS ARE NOW A BILLION POUND INDUSTRY

If the well-groomed intelligent looking person sitting opposite you for a job interview answers the questions well, why not just say – “When can you start”?

After all interviews are a chore and most of us really don’t know how to do them. What we really want is someone who will fit into our organisation, someone personable and if they support Leeds United so much the better.

Obviously if the post requires specialist qualifications, the candidate will be asked to produce their degree certificates and references. But you probably suppose that a person who is not actually an engineer is hardly going to be asking for a job as engineer, so yes, just accept the paperwork at face value and put it in the drawer.

You think?

Link – here — this lady faked her qualifications to work as a Psychiatrist for 22 years, yes you have read that right, 22 years. She was placed into a position of trust pretending to be a Psychiatrist whilst treating Alzheimer patients.

Scary much?

“The convicted fraudster had failed the first year of medical school in New Zealand in 1992, but subsequently managed to register as a doctor with the General Medical Council (GMC) with a forged degree certificate, forged primary medical qualification and a fake letter of recommendation from her most recent job in Pakistan, under a visa scheme that has since been discontinued”

Being a crook, she also took financial advantage.

She “befriended” one of her patents who was recently widowed and fraudulently drafted a Will for that patient and also applied for Power of Attorney over her patient’s estate.

I am pleased to say she did go to Jail for all the fraud she had committed.

But – How did this women get to be in such a position of trust for 22 years, prescribing extremely strong medication (anti-psychotic drugs) and even sectioning patients!

The trouble is, honest people find it hard to believe in criminals. In the abstract, yes. But not in your office, in a job interview, with coffees and bickies – Surely not.

BUT AGAIN – It has been reported that around 75 bogus Universities websites and criminal operations were shut down in the past 4 years in England alone –more than 200 potential cases of fraud based upon the use of bogus degrees and similar fake qualifications have been reported since 2015

As a Notary Public office we are able to offer the service of verification checks of any proposed candidate’s qualification issued in UK, information contained in a curriculum vitae & verifying Criminal records check.

A  Notary Public is a trusted Legal officer whose certification is recognised in any country of the world and who is able to warrant facts and authenticate documents.

There are websites that you can purchase these bogus certificates directly from who are offering “get a realistic FAKE PhD Degree, buy it now @ $250.00”. Here is a –LINK – to one.

Dishonest people who purchase Bogus Educational qualifications are doing so in the hope of landing that “high-flying” job– there have been many reports recently of Doctors who are not qualified who have purchased a fake Degree Certificate to secure the job of their dreams even though they have no medical qualifications whatsoever – yes this really does happen!

See here – a link – to just one of such cases.

And there are more and more reports on the web of people in positions of trust who have used fake and bogus certificates to get the job they want – even aeroplane pilots! – the mind boggles!

Some of the headlines relating to fake Degrees:-

“Pilots and airline staff suspended for fake degrees”
“A PILOT who was caught inventing qualifications to lie his way into a commercial airline job is now flying holidaymakers out of Scotland”
“Thousands could be using fake degrees to apply for jobs”

If you are an employer or recruiter anywhere in the world my message to you is, don’t get caught out by unscrupulous individuals who feel it is okay to lie and cheat their way into employment that they are not qualified or entitled to do.

I am pleased to say that we offer a verification service so you can 100% be reliant on the paperwork your candidate produces. We can verify and authenticate any English Academic papers, we can verify details given on a C.V i.e check references, work experience etc.

Our verifications will be accepted around the world, we can obtain all necessary additional Apostille and Consular stamps.

We also have processes in place to verify and notarise as genuine ACRO and DBS Police Check!

Don’t give these fraudsters a way in. Let’s put a stop to this deceit and verify qualifications and references EVERY TIME – the more recruiters and HR Departments and other employment professionals opt to do this then the less likely it is that a fraudster can find a way in!

So don’t let anyone involve you in their intricate frauds. As the great man almost said “Shame on their greed, shame on their wicked schemes – I’ll say this, I don’t give a damn about their dreams” – Here’s the song –LINK HERE-

If you would like to speak in more depth as to what we can do and what we can provide then please do not hesitate to contact me, Louise Morley, Business Manager 0113 816 0116 or email louise@atkinsonnotary.com to discuss further.

You said “Happy Birthday”. Now I am humiliated.

You said “Happy Birthday”. Now I am humiliated.

It is the right of an employee to be allowed to carry out their duties free from harassment in the workplace. Harassment is the word used in s26 of The Equality Act. It means persistent behaviour that demeans, humiliates or embarrasses a person. So, it means ”bullying” .

Also the Act defines, then prohibits, illegal discrimination. Including discrimination upon grounds of age.

I confess that I find the Act hard to understand in the time I am willing to spend upon reading it. It seems to me to contain a long list of definitions of types of discrimination and of harassment but it less than clear as to what behaviour is prohibited with what consequences in breach.

And look at s30, whatever the consequences of bullying might be, don’t be behaving that way on ships or hovercrafts. Here is -the Link – I’ll let you have a go.

Anyway, let’s assume that brighter minds that mine can unravel the legislation and that workplace harassment is indeed against the law as it obviously should be.

So on to the facts of the Tribunal hearing of Munro -v- Sampson Coward. A secretary in a firm of Solicitors reached her fiftieth birthday and returned from a week off to find that a birthday card had been purchased for her and signed by all of the staff.

She complained to the firm that her birthday was her own private affair and says that the reply was “It was your 50th wasn’t it, you can’t hide it you know”.

The claim of the secretary was in part that the remark was “utterly shocking to her .. insensitive, humiliating and insulting”.

She claimed that the disclosure of her birthdate and of her actual age was a breach of GDPR – a release of her private data to persons not entitled to know it.

Long story short, -here is the link -,  the tribunal dismissed her case.

It found that her reaction was “unusual and extreme” and that the giving of a card was not harassment nor yet discriminatory. Nor, since the Tribunal found that the information as to her birthdate and age came from a disclosure she had made in conversation with one of the other secretaries rather than from her HR file, was there any data breach.

It found that the giving of the reviled birthday card was intended as an “act of kindness”.

You think so, Sherlock?

Any conclusions?

A reading of the case indicates that the Tribunal decided that the lady had been dismissed for rather poor work within the first two-years of her employment. Therefore, before any rights in Law against unfair dismissal had been accrued.

So it seems to have decided that perhaps her claim was instead made on the basis of dismissal for “whistleblowing” about the alleged data breach simply because there is no such time limit applicable for that.

The general tone of internet comment to the idea of finding a birthday card “humiliating” has been robustly derisive.

But. And then again, but.

Over twenty years ago, when a secretary of mine reached fifty, one of my friends rang her in the guise of an undertaker trying to sell her an instalment-plan funeral. Ho ho.

Much longer ago again, when the oldest of my group of teenage friends reached twenty, we all signed an “in memoriam” card with lilies and weeping angels on the front and posted it to his parents, declaring our deepest sympathy in their time of loss of their beloved teenager. Once again, Ho ho. And furthermore, Tee Hee.

How does that look in 2020?

Why do actors, particularly female ones, appear sensitive about their age?

Why was it necessary to bring in Acts of Parliament to protect workers from being required to leave work when they qualify for a pension?

Why does Pizza Express (other restaurants are available) demand your birthdate? It says – in order to confirm you are over 16. Do you believe them? In which case, maybe a box to tick “I am over 16” would do the trick?

[Having said that, if you enter your email address and a random birthdate each time you download a restaurant offer, you may well eventually receive almost weekly emails congratulating you on your birthday and notifying you of a free prosecco or whatever when you visit.]

All data has value – Below is advice to commercial email senders and advertisers from Experian including:-

“Whether the subject line is just a simple “Happy Birthday” or it indicates an offer or a gift … the response metrics are strong. …. Compared to mass-promotion mailings, the total open rates for birthday and anniversary campaigns are 235% and 150% higher respectively.” –Link Here-

If you go to most shops, the “loyalty card” needs your birthdate. See above. They think they can sell you more if they email you on your birthday.

Worse than any of that, see my 2015 Blog. – Link Here- Computer hackers actively look for elderly people to steal from. You’re 40 now, not bothered? Think on- You will get old and the computers in forty years’ time will not have forgotten you or your birthday.

So maybe going forward, we don’t find it so friendly a thing to do to make a note of, and celebrate, a work colleague’s birthday without express permission.

But, it’s a lonely world and a bit of friendliness in a spirit of kindness should surely always be seen as a good deed? You tell me.

As, ironically enough, no-one says any more, O tempora! O mores!

Have you got a Birthday this year? So have I. Here is the music –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

 

Judges – On The Whole, Rudeness Is The Remarkable Exception These Days.

Judges – On The Whole, Rudeness Is The Remarkable Exception These Days.

In many of my Blogs I have provided links to the transcriptions of various Judgments of the Court.

For example:- The judgment of The Honourable Mr Justice Fraser, in my most recent Blog, about the terrors of working for the Post Office, was a document of the length of a novel and it was a model of clarity.

Again, in the case where the liability of Wm Morrison Supermarkets PLC to its employees in respect of a malicious act of a computer hacker was considered (currently awaiting a final appeal decision) the words of The Honourable Mr Justice Langstaff are thoughtful and clear and where the Judge felt that there was room for doubt he was fair to say so and to give leave – without being asked to – for an appeal. -Link here

And it is true that in the vast majority of cases in the higher courts, this is the standard.

Lower down the legal system, sometimes this is not the case.

Even so, rude and hostile judges are still so rare that examples tend to make the news.

There was one such case in 2019 which made the local press -Link here- and professional press headlines -link here-

This was the case of a court being asked to decide about the care and housing of a young child – a baby girl of one year old. The case was heard over five days and it’s not surprising that most of the witnesses, experts and family members, and judge alike, had strong feelings and a deep emotional investment in arriving at the right decision.

The decision to be reached was in essence a choice between foster placement leading to an adoption plan for the baby, or placement with grandparents.

The main problem with the second choice was the existence of a brother of the baby, a youth of 14 whose medical and behavioural problems meant that his presence in the same household as a one year old child would be a “threat to her safety and wellbeing”.

And whilst the boy was in residential care when the hearing was taking place, he was the subject of a settled “care plan” which included returning to live with those grandparents shortly.

The eventual decision of the Judge, District Judge Mian, was that the baby could not safely live with the grandparents and this fourteen year old, and so a placement was ordered for the baby girl as a preliminary to adoption.

On appeal, the Appeal Court agreed that, on the evidence, the decision of the lower Court – of DJ Mian – was actually cogent and well-reasoned. ”It would be difficult to criticise the Judge’s approach to the discretionary elements of the case.”

So what’s the problem?

As a reading of the press reports, and of the Appeal Court Judgment shows, the problem was not that Justice was not done. The problem was that justice was not seen to be done.

Have you ever experienced a situation where a meeting gets out of hand? Where you are simply trying to put across your point of view in a reasonable way. And everyone else is being obstructive and refusing to let you speak, or refusing to give any weight to your views. And the emotion ratchets upwards and everyone gets crosser and crosser and you can’t understand why no-one else in the room can see that you are the only person talking sense? According to you, of course.

(Brexit anyone?).

The hearing fell apart. Because the grandparents who represented their own views, and the social workers who spoke for the interests of the baby girl, clearly did not believe that the brother ever would come to live with the grandparents.

So they were discounting that possibility, and all of their submissions to the Judge were that the best place for the baby was with the grandparents because the perceived risk to the child if brother came to live there too was not an actual problem. Because he NEVER WOULD return. May I call that “Position A”.
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But the Judge took the view that her hands were tied, because a Court had approved a care plan for the brother which was in force, which in her eyes meant that the case had to be decided on the basis that he CERTAINLY MUST return. My label, “Position B”.

And so the Judge was effectively trying to forbid any witnesses’ submissions on the basis of Position A. But the witnesses considered Position B preposterous and found themselves unable to accept it even as a hypothesis.

So round and round they all went, day after day, like teddy-bears in the nursery rhyme.

Which made the Judge crosser and crosser. Swearing and shouting. Storming Out of the Courtroom, unable to speak because she was shaking with rage. Turning her back on the Court. Scornfully mimicking the advocates and witnesses. Oh dear.

The fact that the Appeal Court could find no fault with her eventual written judgment didn’t make it all right. As they told her, you simply cannot run a Court hearing like that.

And of course, and wouldn’t you know it, by the time the Appeal Court heard the case, the 14 year old had confirmed his refusal to leave residential care to live with the grandparents and his own case had been reconsidered and he will now live until adult in a suitable residential placement away from his family.

Here is the Appeal Judgement transcript – Link Here –

So as the Appeal Court said, at paragraph 28, it is easy, “when you have hindsight and the irony of the situation is not lost” – Precisely what the Judge was being urged to consider and had refused time and time again to consider, “has come to pass.”

Very sad for all concerned. This is not an incompetent or usually rude Judge. But things went badly wrong.

If we are actually looking for rude Judges, the contemporary prize seems to go to the now retired His Honour Robert Stephen Dodds.

The Court Case Judgement which led the webzine Legal Cheek to dub him “Britain’s Rudest Judge is here -Link Here- . Once again, the Appeal court does not find his Judgment necessarily wrong in relation to the facts and justice of the case. But the manner of it certainly was.

But do you not feel cheered to read of a Judge who can tell the open Court “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”?

I hope that His Honour lives long to enjoy many codswallop-free Saturdays in his retirement.

At least there is no Judge practicing in the English Courts now who is in the terrifying league of the late Hanging Judge Jeffreys. His reputation has survived over some 350 years.

An extract from a learned paper – link here-

“There was a fiendish exultation in the way in which he pronounced sentence on offenders. Their weeping and imploring seemed to titillate him voluptuously; and he loved to scare them into fits by dilating with luxuriant amplification on all the details of what they were to suffer.”

Crikey.

Here’s the song – Peter Tosh reminds us that we may one day meet a Higher Judge. –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

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

 

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