Who Should Pay? And, What is Fairness?

Who Should Pay? And, What is Fairness?

I have written Blogs earlier, about problems which can be caused by rogue employees – by co-incidence they both involved the huge Supermarket Company WM Morrison Supermarkets PLC.

In the first case, Morrisons had to pay out compensation because a petrol pump attendant [that shows my age – let’s say, a man who worked at the till of a petrol station] went mad – or maybe he had been mad for years, but he suddenly let it show and attached a customer first with his fists, knocked him down and then kicked him.

Here is my Blog about that – Link Here-

The reason Morrisons had to pay compensation is because in England there is the concept of “vicarious liability”. An employer is liable to pay compensation for the consequences of civil wrongs “Torts” committed by its employees when they are working.

The thinking is that employers should recruit proper responsible people, and also supervise their actions sufficiently closely so as to ensure they behave well.

For example. if there is a bully in the office, harming co-workers lives and their mental health then an employer is liable to compensate for the harm done and also if the behaviour is not brought to an end.

When a wrongdoing is done by someone obviously at work, vicarious liability is relatively easy to identify.

But the law is imprecise at the edges. What if this petrol pump man had attacked a random person whilst on a bus on his way to work? Or whilst on holiday in Spain – paid for out of savings from earnings at work. Presumably, no vicarious liability.

What if a lorry driver carelessly runs you over, whilst making a stop at an ATM, half a mile from the route his employer had set him? Vicarious liability.

What if a lorry driver scheduled to drive from Leeds to London, carelessly runs you over at an ATM in Newcastle where he is skiving off to visit his girlfriend? Not Vicarious liability. He is too far removed from what he is employed to do, he is on a “frolic of his own” as the law calls it.

Another facet of the law surrounding the concept of vicarious liability, is that the motive of the employee is irrelevant. So if a bully wants to see fear, or a mad petrol kiosk attendant wants to see blood, or a lorry driver is simply careless, – doesn’t matter.

Say it again – motive doesn’t matter.

The second time Morrisons have been enmeshed in the complications of Vicarious Liability, is the one I blogged about here – Link here.

Quick summary:- Andrew Skelton worked for Morrisons as an internal auditor. He had access to personal data including bank details, NI numbers, phone numbers and possibly a lot more, about the employees of Morrisons. At least 5500 of them are represented in the Court claims but there may be over 100,000 of them according to some reports.

His problem was that Morrisons didn’t like him using their premises and computers to run his own “e-commerce” business when he was being paid to work for Morrisons.

I know – These prickly employers eh?

Having got into a lather about this sheer totalitarianism – the outdated mindset of Morrisons that their employees ought to spend their time at work attending solely to the affairs of Morrisons – he cooked up a cunning plan.

He downloaded all of the sensitive data to which he had access, and put it onto memory stick and took it home

He waited several weeks out of caution then he published all of the data online.

He is in prison now serving eight years. Good.

And Morrisons have been found liable to pay compensation to his victims. Vicarious Liability.

But the case has now been taken to the Court of Appeal by Morrisons. The argument they put forward is that this case is a very unusual one, because Skelton was primarily acting not in order to hurt the employees of Morrisons, who might suffer distress and worry and also perhaps financial loss to computer hackers – but only in order to hurt Morrisons and its business.

Skelton knew about the law of vicarious liability. He knew that Morrisons would be found liable for the consequences of this actions and he acted in order to maximise the financial loss to Morrisons.

So his crime was intended to hurt Morrison, and it has certainly worried one of the Judges of the previous hearing that the Court itself is being required find Morrisons liable vicariously and thereby, to do the criminal’s dirty work.

The spectre has arisen of the possibility of a new kind of financial terrorism.

At the latest Appeal hearing the Court has declined to change the basic rule that “Motive does not matter”. Here is a link to the hearing transcript – Link Here-.

Morrisons will have one more go I expect, an appeal to the Supreme Court.

What does the team think? The law is I suppose an attempt to structure acceptable behaviours. It is not true to say that the aim of jurisprudence is to make life fair for everyone, but certainly fairness comes into it, if only because manifest “unfairness” might be hard to define but easier to recognise, and ultimately can lead to public dissent, rioting and revolution.

Not that one person’s fairness is not another one’s unfairness. Certainly Morrisons feel it is unfair, that they may be facing pay-outs of millions for the behaviour of a criminal whose only aim was to make them pay out millions.

But the people whose data, which should have been kept safe, has been published openly onto the internet, will also feel it is unfair if Morrisons’ Appeal is successful, because that will mean that the only redress will be whatever they can get out of Skelton, who is in jail. So good luck with suing him for millions he presumably hasn’t got.

It seems to me that breaches of GDPR need to be taken out of the scope of the laws of vicarious liability.

If Parliament thinks that Morrisons have actually done something wrong [and remember, the Courts have enquired fully and don’t think it has] then Parliament should define that culpable behaviour.

Seems to me also that the whole concept of vicarious liability was originally to enable co-workers or the public to get compensation when they otherwise would not have been able to, in the context of a world which was much simpler and when the idea that a malicious keystroke on a computer could have consequences of the sort now facing Morrisons, was the stuff of science fiction.

But it is not science fiction now, and in my view we really don’t want to encourage economic terrorists whether idiots like Skelton or more ideologically driven idiots or enemies to get into jobs where they can bring down our country’s biggest economic engines, now do we?

That’s a bit of a gloomy thought. Cheer up – Link Here-

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

Advertisements

House Thefts. Land Thefts. Latest Court Decision. The Judges Don’t Agree What To Do.

House Thefts. Land Thefts. Latest Court Decision. The Judges Don’t Agree What To Do.

It used to be that when you bought a house in England, you got a title Deed. Or more likely, a huge bundle of title deeds. If you had a mortgage you had to let your lender keep the bundle. If not, you likely stored them in a Bank or at your Solicitors’ offices.

No-one who didn’t need or have any right to look at them, could look at them. No-one could copy them, no-one could pretend to be you and then sell your house to an innocent third party and steal all the money.

You might wonder, why has that system been replaced for the system we have now? That is, by a system where A CROOK CAN LOOK AT YOUR DEEDS ONLINE FOR £3.00 AND PRINT THEM OUT IN UNDER A MINUTE.

Then all they have to do, is pretend to be you, and they can sell your house. Or more precisely, persuade innocent buyers into paying the crook for the house in the belief that they are buying it.

Ok there is a lot more they have to do, in terms of having the computer knowledge to hide the money once they have got it, and having the sheer brass neck and basic criminality in the first place. And the crook needs to find an empty house, because a buyer would not buy it with you in it.

An exception to the empty house point, is the documented case of the criminal taking a tenancy of a property, then selling it as the owner, after actually changing his own name to the name of the property owner, by Deed Poll!

That enabled him to get a real driving license, council tax bill, bank account, all in the name of the real owner. Link here

But the “open register” system has removed the most basic protection of all. Title Deeds.

This new system has been in place since 2003.

In 2009, identity theft according to the guardian, was the UK’s fastest growing crime https://www.theguardian.com/media/blog/2009/oct/12/ukcrime-id-theft-rising

And in 2018? The Register says, ID theft in UK hits a record high https://www.theregister.co.uk/2018/04/18/id_theft_in_uk_at_record_high_cifas_report/

Can you tell me this – Why can I find out who owns a house worth millions, and whether they have a mortgage, and then print their ”deeds” from the Land Registry, yet I can’t find out who owns a car worth £500, from the DVLA?

Surely the obvious thing is that the Government should immediately block the public access to the Land registry information?

Anyway, until the Government finds a brain cell, [and don’t hold your breath about that], the reality is that crooks can easily get the information and documents which they need to steal your house. The question then arises, what should be done with the stable door?

Basically when a crook C has pretended to be an Owner O and “sold” a house to Buyers B then run away with the money, and C has used a solicitor SC [who thinks that C is O and that they are therefore acting for O] and B has used a solicitor SB, the compensation choices are

1 C intended to steal Money from B and has done so. No one is to blame but C who has disappeared. B has lost the money and no one will compensate B

2 SC has been careless in letting B and SB believe that SC actually acted for O. SC should reimburse B

3 SB has been instructed and paid by B to complete a transfer of the house into the name of B. This has not happened. SB must reimburse B

4 Between them SB and SC were warranting to B that they are competent solicitors who will work together to ensure that house ownership is transferred to B. This has not been achieved and so both must share in reimbursing B

And believe it or not, as my earlier blogs have explained, each of the possible 4 choices has been the result of choice settled upon by a Judge in at least one case.

So it is clear, the Courts haven’t known what to do, each Court has decided to deal with the problem in a different way.

Now what’s new is that we have very recently had the news of a decision upon appeal of the “Dreamvar” case which I have blogged about earlier – link here –

As it was decided in February 2018 – most surprisingly, – the Judge ordered that it should be the Solicitors acting for the innocent Buyers who should reimburse their client. Option 3 of the 4 above.

In a nutshell, the 15th May 2018 Appeal decision has fudged the question and plumped for option 4 – both sets of lawyers must reimburse. –Link to Case Report here –

I think it is fair to say that most commentators and lawyers were expecting option 2.

That seems the right one to me in a case where the “selling” lawyers SC have been less than careful to identify not only Mr X – the person in their office, but also the relationship between Mr X and the ownership of the property.

And it is therefore interesting to note that one of the three judges who decided this appeal, does not agree with the decision. That dissenting Judge said “I consider that ….SB… ought fairly to be excused”.

So the result is that, if the Courts can’t tell them, no-one in the business of Conveyancing has much idea of the extent of their risk and insurance obligation.

I will treat us all to another Blog no doubt, when this latest decision is itself appealed!

It’s my House – Link Here – – Don’t let anyone steal it.

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

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

“Apostille” only please? On my Birth, Death or Marriage Certificate. No Problem. Louise Explains.

“Apostille” only please. On my Birth, Death or Marriage Certificate. No Problem. Louise Explains.

If you have been asked to obtain an Apostille on a GRO Birth, Death or Marriage Certificate then we can obtain this for you.

You may be requiring to obtain a foreign passport for a child born in England, or dealing with visa or other matters abroad.

If the foreign Country is a party to – i.e., has signed- the Hague Convention of 1961 then it will require an “Apostille” to be placed on a document which is to be relied upon.

I am sure there will be many people who do not know what an “Apostille” is – to explain to those people, in a nutshell it is a stamp issued by the British Foreign & Commonwealth Office and confirms that the signature of a named signatory on a document is genuine – whether that be of a Notary, Solicitor, Registrar etc…

In particular, the Apostille contains a unique number which is back-checkable on the internet.

So in the case of an English certificate, the Apostille is the British Government warrant to the foreign jurisdiction that the signatory is indeed who s/he purports to be.

The Apostille will be relied upon abroad because it is in effect an Insurance policy, protecting the foreign entities who rely upon it – the British public purse will cover any financial loss from anyone overseas relying.

If a foreign jurisdiction do not require any notarisation then this is fine – we can still obtain the Apostille for you – what this means is that instead of the Apostille warranting the Notary signature, the Apostille would be warranting the signing Registrar on the GRO certificate.

You can of course submit appropriate documents direct to the Foreign Office for Apostille in this event. However many of our clients prefer to drop the paperwork in to us, so that we can check it is in order and appropriate for the Foreign Office, and then have us deal with the Foreign Office on your behalf.

One example I can give as to why an Apostille might be required on a GRO Certificate is that of registering the birth of a baby who has been born in England however their parents are of Eastern European nationality and are required to register the Birth of the baby in their home country. Typically what is required is an “Apostille” to be placed upon the Birth Certificate of the baby. This can then be submitted to the foreign jurisdiction to register the Birth.

Another example is if you are planning to get married overseas – some foreign jurisdictions require an Apostille to be placed on the reverse of a GRO Certificate of No Impediment – again this confirms to the foreign jurisdiction that the signature of the Register on the certificate is genuine and can be relied upon and the foreign jurisdiction can be quite content that they are not marrying bigamists.

A further example is an “Apostille” may be required on a Death Certificate to prove to a foreign jurisdiction that the death of a person is genuine – so if there are assets to be sold and/or distributed then the foreign legal adviser can be sure of the fact that the death is genuine and can proceed with the legal formalities.

The list goes on but hopefully the examples above will give you a good idea why an Apostille only may be required and if you need help with this, then we can assist.

There are two services [timescales] of obtaining Apostilles:

1. Standard service – as at today’s date currently the Foreign Office are taking around 5 working days to return documents to us with Apostilles
2. Expedited Service – we can, using our Agents in London, obtain an Apostille by hand within 24 hours and get it back to our office in 48 hours.

In addition, we are FedEx Agents and can have your paperwork delivered by FedEx Courier to most places in the World for you.

Please do contact me whenever you need Notarial certification or an “Apostille” – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)

Notarisation. Never a Dull Moment. No, Really.

Notarisation. Never a Dull Moment. No, Really.

No doubt there are those who imagine that the world and work of a Notary tends ever so slightly towards the enervative side of the tedium spectrum.

But I am here to tell you NO. Just like the wacky purviews of the Accountants and the Actuaries, a Notary’s work-load is an exciting daily roller-coaster ride of new and often baffling conundrums.

For this week, a reminder for this Notary that doing it the job “correctly” is no substitute for doing the job in a way in which it will be acceptable to the end user abroad. And that there is a difference between being knowledgeable, and being wise. Wise is better!

An example is that of the colour of ink to be used. As we are taught at Notary Nursery school, three countries in the world will reject out of hand the use of any colour or form of ink other than black fountain pen. [South Africa, Italy and Malaysia].

Since there is only one place which requires the use of Blue ink [Florida USA], it is easy enough therefore to use black ink for everything, with a blue pen on stand-by for Floridian documents.

So imagine the frisson of excitement and ruffled feathers in the Notarial World, when a document for Hungary has been rejected there, for use of Black Ink. The same black ink that Notaries have been submitting to Hungary for hundreds of years. NO, says the Hungarian nut-job “I WANT BLUE INK”

The reality for Hungary is that the old Civil Code has a section – incidentally now repealed – that requires signatures to be “visibly original”. Well whatever that phrase means, it surely cannot mean that a blue signature is necessarily original or a black one not visibly original, in this day and age of colour photocopies.

There is NO Hungarian prohibition on the use of black ink.

Notarial documents bear an impressed seal in any event so that the original document is not flat as a photocopy is flat. [Are there 3D photocopiers yet?]

Notarial Documents for use in Hungary bear the Foreign and Commonwealth Office Apostille, verifiable on the internet.

Every other Hungarian lawyer accepts black ink documents. So there are lots of good points to raise in argument. If you want an argument.

The point is though, that doing things right gets you only so far. The reality is that if a man in Hungary wants a document to be signed in Blue Ink, it is quicker and cheaper to – you guessed – sign it in Blue Ink.

So a knowledgeable Notary in England might pass his exams and do everything by the book and send a black ink document to Hungary and get them rejected, whilst a wise Notary will before starting work, ask the man in Hungary – what colour ink would you like?

And by the way, I may have lied about the exciting Actuaries.

And blue and black ink pens are available here so, as always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

You Read It Here First. Check The Qualifications. Weed Out The Imposters.

You read it here first. Check The Qualifications. Weed out the imposters.

It is exactly one year ago that I wrote this Blog –Link Here – and sad to say, it hasn’t changed the World.

The gist of last year’s message was, don’t give a candidate a job just because they have a nice smile or they remind you of your favourite film star.

Don’t have a quick look at a Degree certificate or put the candidate’s letter of reference into the desk drawer, on the basis that you will check it later only if it turns out they are rubbish at the job.

Because, if you give a job to someone who is using fake papers, you may be held responsible if their incompetence causes loss or injury to your customers or others in the course of their employment.

The reality is, as I wrote last year and as the BBC have got around to reporting today, that there are liars about. Yes, really.

And the best liars will be those with the nicest smiles, possibly.

Here is the link to the BBC report –Link Here – – May I remark without being too smug that it adds little information to my year-old blog? –  Beyond making it clear that the problem of fake degrees is getting worse not better.

There is a big problem at the root of any system of learning and testing. What should be taught? How should a person’s understanding of what has been taught be tested? Who is qualified to mark the test?

Some areas of learning have a right and a wrong. Two plus two equals four.

But other areas – creative writing say, a bit harder. If a piece of text is submitted for an English language exam say, one examiner might decide it is first class. A wonderful exciting insightful story. A page-turner which they could not put down. First Class marks. But another examiner of the same piece of work might discount all that if it is full of spelling mistakes, split infinitives and incorrect punctuation. Marked grade E or even a fail.

And a candidate for a job writing instruction manuals intended for photocopier engineers to use, might not get the job if critics could say of his prose:-

“What punctuation there is has the effect not of assisting interpretation but of further breaking down any chain of meaning in the language…… instead ….  it operates as a kind of revolving door by which one both exits and enters the various semantic fields in the passage.” © Adrian Hunter writing about Samuel Beckett.

Beckett was one of the greatest writers of the twentieth century but obviously not a man to turn to when you want to be reminded how to change the toner cartridge. So does Beckett pass or fail?

So where does that leave a student with low or no grades, if ability or entitlement to a degree may be little more than the opinion of a particular examiner? Resentful, much?

So it is not too surprising that it seems that there is a huge market for fake degrees and diplomas. And whilst most may be purchased by frauds who never even went to school, that is not the whole market.

There are also those people who have worked extremely hard and feel cheated by their lower degree or failure. They may feel that the examiners have let them down and that they deserved to pass, or to get a first class award. It may be that a person works in an Industry and knows s/he is better able to do a job than a higher paid colleague, but the colleague has been given the job because they have a degree.

Which may be why there is such a huge market for fake degrees. A real degree can be the passport to secure and high-income employment. Therefore, so can a fake one. If it looks real enough and no-one has asked a Notary to investigate it.

Just for fun, google this

“Where can I buy a fake degree in UK?”

Yes, over 29 million results.

So, it seems that there may be more fake degrees certificates issued than real ones.

Not every person who has felt tempted to purchase a fake degree has a self-image as a fraudster. But here’s the reality – It is dishonest and you can go to jail.

What does seem to be interesting now is that the criminals who sell these false certificates, have a second string to their bow:- You are Mr ABC, and you have bought a degree in Engineering from the University of NotaPlace. Mr Crim knows who you are. In a couple of years, he sees Mr ABC is a Lecturer in Engineering at the British University of Somewherereal.

Next thing, Mr ABC is threatened by the criminals with exposure to the Police and his employers unless large sums are paid. Blackmail and extortion – Today and forever.

It’s a naughty World out there, so keep yourself as safe as you can, check everything once, check it again, and then ask me to Notarise it!

This week’s song – Link here for New Job –

And as ever – our message to you is, for documents for use around the world as well as educational certificates for use in England, do contact me or Louise Morley here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

People do ask – what is the difference between a Notary and a Solicitor?

People do ask – what is the difference between a Notary and a Solicitor? [a -Training and Exams]– Why must this document for use abroad be made by a Notary? [a -Because Foreign Law says so]

The situation in England is further complicated in people’s minds by the fact that there are few if any Notaries who are not or have not also been Solicitors. So what difference does it make which hat they have on?

One of the most fundamental differences, is the mental attitude which is brought to bear.

When S/he is a Solicitor, Mr/s NP will approach your documents with the aim of ensuring that they achieve your purpose. S/He is acting for you and for your best interests. Whilst s/he will not lie for you, s/he will keep your secrets and release information only after you have authorised doing so. If there are aspects to your documents which are very much to your advantage, and which s/he reasonably suspects are aspects which “the other side” may not have noticed, s/he will not point out any bear traps to them.

When S/he is a Notary, Mr/s NP should not act for you if s/he is also your solicitor.

When S/he is a Notary, Mr/s NP is acting for “the Transaction” regardless of who is actually paying the fees.

That means – not giving advice to anyone. Checking that the person in my room tells me that they fully understand the significance of the paper they wish to sign and has taken all legal advice they consider necessary.

Then the Notary will give a certificate without regard to the interest of anyone or anything other than the truth.

An example from my mailbag is an enquiry from a Notary who asks what should be done in this case:-
“The Managing Director of a large Public Limited Company has made a Statutory Declaration relating to setting up an overseas company before me yesterday. The content is the document was typed in by his staff. Now it transpires there was a small* typo –an error in his Date of Birth. His secretary is quaking (apparently God answers to this Managing Director rather than the usual arrangement) and as he has flown to USA this morning he cannot simply make a fresh Declaration today. They want to know if they can hand-amend the Date of Birth, having checked with the receiving party that would be acceptable to them. My strict view is that if – as he has – the declarant has declared the information contained in the Declaration to be “true, accurate and complete” then no amendment should be made. Am I correct?”

*NB “small” – his words, not mine!

Now wearing the Solicitor’s hat you might think this is an answer:-
“If, as I assume would be the case,
1. You would have been happy to simply add your initials (together with those of the declarant) to a correction, by hand, to the date, at time of its declaration and
2. The recipient is happy to accept the correction with the initials of the declarant alone, then I really don’t see a problem, as long as you obtain a copy of the final version for your own records.
And – Why re-date it? If I understand you correctly, the MD is in the US, with the Stat Dec (dated yesterday), and the recipient will be happy with the manuscript amendment being initialled by the Declarant alone. What’s the problem?”

As a Notary however, my reply must be:-
It is your sad duty to explain to him that, he having made a false statutory declaration, he must now serve a prison sentence.
No exceptions, not even for God’s boss, who is too important to read the words of his own Declaration.

Or, less flippantly,

Why can a new Statutory Declaration not be made in USA? There are Notaries in every coffeehouse, very reasonable fees.

AND the problem is that the date is now different, all that happened yesterday, and today God’s boss is in the States and cannot initial the amendment nor its re-dating.

BECAUSE – the inconvenience of the situation is neither here nor there to the Notarial mindset. All that matters is the truth of the transaction and the paperwork surrounding it,

And BECAUSE A statutory declaration is an oral statement made in front of a Notary. The fact of the oral statement is documented on paper. Therefore, no change to the paper can alter what was declared orally in my room; alteration can only provide a false documentation of the oral declaration.

If a man has made a statutory declaration in my presence, he has averred something to be true and has accepted that if he speaks falsely then he is in peril of jail for perjury.

If he later sees that because of carelessness, the statement contains a falsehood such as an incorrect date of birth then the way to correct this is to destroy the false document and make a new true one.

And certainly, if he instead chooses to make and initial an amendment to the false one then that is nothing to do with the Notary and I certainly don’t want him to tell me about it.

He cannot expect me to replace my protocol copy of what actually took place, with a copy of his defaced – he would say corrected – original, which now appears to document a declaration which in fact never took place.

I mean – if I gave him a fiver in his change, he can cross out £5 and write £10 and initial it if he wants. Nothing to do with me though is it?

There is no place in notarial work for the somewhat solicitorial perception that the correct thing is to do “what is needed to get the job done”, acting from the point of view of the “client”.

Maybe I was never cut out to be a Solicitor. When I was one, some years ago, I once was asked by a client to give advice after he discovered that he had bought a plot of land which did not have the rights of way he thought it had. And he thought it had, because he had not read the paperwork and had refused to let me “waste time and increase the bill” by explaining everything to him before he went ahead with the purchase.

My advice to him was that he “should now live with the consequences of his mistake”.

That went down well.

Hey ho, it’s Christmas, goodwill to all etc. So here –Link Here – is a splendid song: Have a Happy Christmas and New Year.

I will blog again in 2018.

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

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

Morrison Supermarkets Dropped In It Again! Look Out Data Controllers. Look Out Insurance Companies. And Indeed, Look Out, Everyone Who Pays For Insurance.

Morrison Supermarkets Dropped In It Again! Look Out Data Controllers. Look Out Insurance Companies. And Indeed, Look Out, Everyone Who Pays For Insurance.

The Court case described in this Blog is very timely, for me, since it directly deals with the obligations and liabilities of Companies and individuals in relation to Data Handling, Data Storing and Data Protection, the subject of my most recent two Blogs, Link Here and Link here.

And also you may remember my fairly recent Blog when I wrote about what seemed on the face of it to be a very unfair case from the point of view of the Supermarket. Link to my Blog. Link to the case report. Mr Mohamud –v- WM Supermarkets plc

This was the case of an employee of Morrison working in one of their petrol service stations who seemed to take exception to being asked if he would be willing to print out from a USB stick. A polite “No” would have done it. But, he attacked and beat his customer.

Hardly what he was employed to do.

However I suppose that if Morrison had not been held liable then the poor customer victim would probably have been quite unable to obtain compensation for his injuries. Possibly, as a rule of thumb, maniacs who work in petrol stations and subject random customers to random violence, are not the kind of people most likely to have “high net worth”.

Now this month it turns out that Wm Morrison Supermarkets plc doesn’t seem to be the luckiest when it is comes to defending claims of vicarious liability – just now in the past week they have lost another one, this time in the area of Data Protection.

The facts seem similar – an employee who was trusted to do his job properly, suddenly turned rogue.

In this case, Mr Skelton was a trusted employee in the IT and data handling department of Morrisons, trusted to liaise with the Company accountants and supply sensitive data when necessary.

Although the Company knew that Mr Skelton had recently been disciplined for sending his own personal postage through the firm’s post room [even though he had paid for the stamps he used] and also knew that he felt that the treatment he had received was unnecessary and unfair, it had no reason to suppose that ideas of revenge would lead him to release the entire employee personal database contents onto the internet.

The Court heard that Mr Skelton has been jailed for eight years. He has denied the charges, but the Courts are satisfied that he deliberately intended to cause financial and reputational harm to Morrisons.

Indeed, Morrisons has already spent over £2million in rectifying the data breach both internally and on the internet, so he has deliberately cost them that money.

Of course, he also risked causing untold damage to the over 100,000 supermarket employees whose salaries, bank detail and NI Numbers he sent to newspapers and posted on data sharing websites, exposing each and every one of them to the risk of data theft which is on-going.

A full transcript of the Court case decision is here – link here – I found it fascinating, almost like a novel, in setting out what has happened, and what should be done about it and why.

The first Court decision is, that Morrisons are not themselves in breach. Of all the possible reasons why they might have been found in breach of the Data Protection rules, only one stood up to merit any kind of examination, this an alleged breach of Data Protection Principal No. 7.

Which says “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”

And after considering that in the context of the particular case, the Judge found that – yes – there is room to criticise Morrisons in that PP No 7 requires “appropriate technical and organisational measures” and in this case the court did not find a measure in place to require Mr Skelton to both delete the sensitive data after a reasonable time nor that he was required by Morrisons to prove that he had done so. BUT see paragraph 120 of the judgment: the Court also found that this “failure” neither caused nor contributed to the data breach.

So, there is it, – subject to only one failing which was not material , the Court found that Morrisons had done nothing wrong.

But that is not the end of the case. Just like in the case of Mr Mohamud, where Morrisons had done nothing wrong either.

Because the law is the law, and it includes the concept of vicarious liability —-
For example, in an engineering works, imagine that the Management requires machines to be used only with safety guards in place. Staff are regularly reminded of this, there are signs all over the place. Then, because he is under pressure, or whatever, a worker A uses a machine without a guard and worker B passing by is hit by hot metal from the machine and blinded. A guard in place would have prevented that. Worker A is behaving in a way the management would never condone. Worker A will get into trouble, might be sacked, and management has tried as hard as it reasonably can to prevent this happening, but the management is vicariously liable.

Unfair on management, fair on worker B, it’s the law.

What may send a quiver of worry through businesses and insurance companies alike is the rather scant regard the Judge gives to worries that these data protection cases might bankrupt your business, or cause huge increases to your insurance premiums.

He says in para 158 – “I note that I have not been referred to a single case in which it is said that vicarious liability had overwhelmed a company. I HAVE NO DOUBT THIS IS BECAUSE MANY COMMERCIAL ENTITIES WILL COVER THE POTENTIAL LOSSES BY APPROPRIATE INSURANCE WITHIN THE ORDINARY COURSE OF TRADING.”

So that’s all right then, eh?

Motto is, eyes like hawks at all times.

But managing employees is an exercise in herding cats, and the cleverer they are the harder it can be.

If your employees are holding mad grudges and are determined to fool you and to “take revenge upon you”, for the time being at least [pending an appeal] it seems that you will have to pay in the end.

No doubt insurance companies are sharping their pencils to increase premiums on data protection insurance matters, as you are reading this.

Final thoughts: – there is no doubt the Judge has real concerns about all this.

He has not failed to notice that in finding against Morrisons, he is doing exactly as Mr Skelton hoped he would.

Para 198, “The point which most troubled me in reaching these conclusions was the submission that the wrongful acts of Skelton were deliberately aimed at the party whom the claimants seek to hold responsible, such that to reach the conclusion I have may seem to render the court an accessory in furthering his criminal aims.”

Food for thought, when it is the law which is giving this criminal what he wanted.

The case decision contains the words that “no earlier case of vicarious liability has gone quite so far as this one in holding an employer liable for the consequences of an act of an employee designed specifically to harm that employer.”

[Compare the more usual case, of the unguarded machine say. There, the careless worker would probably have been trying to maximize production and minimise delays, which would ultimately benefit the employer. Also, the management could have done more. Machines can be set up to be inoperative if the guards are not in place.]

The Judge is clearly not pleased to be Mr Skelton’s accomplice. Nor that the facts of this case might give comfort to malcontents nutters and even terrorists seeking ideas to undermine the financial stability of companies from within.

Funny old world, innit.

Here’s the song [ It’s not my fault ]

And as ever – our message to you is, for documents for use around the world do contact me or Louise Morley here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com