barrister magazine issue 41

8/9/2019 Barrister Magazine issue 41

1/21

3

the barrister ISSN 1468-926X

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.20

Jeremy Bentham, the Eighteenth Century jurist,philosopher and social reformer, believed thatin the darkness of secrecy, sinister interestand evil in every shape have full swing. Only inproportion as publicity has place can any of thechecks applicable to judicial injustice operate.

Where there is no publicity there is no justice

Publicity is the very soul of justice. It is thekeenest spur to exertion and the surest of allguards against improbity. It keeps the judgehimself while trying under trial . Theseopinions have lain at the heart of the debate,conducted inside and outside of the family courtsfor many years, about the extent to which itsprocesses should be exposed to public scrutiny.

In the last three years, the debate was stoked bytwo full public consultations 1 which canvassedviews about media access to the family courts;opinion was strongly divided. Unsurprisingly,100% of media representatives who responded tothese consultations agreed with the proposition

that they should be admitted as of right; 72%of members of the public and 54% of voluntarysector (charities for children, adults or others)o r g a n i s a t i o n swho replied alsoapparently agreed.

A significant

percentage (upto 72%) of the judiciary respondingexpressed viewsagainst mediaaccess, as did 77% of the responses fromlocal and devolvedgovernment andNon-DepartmentalPublic Bodies(NDPBs), and 78%of responses fromlegal practitioners or bodies representingthem.

p.28

N ws

Where there is no publicity there is no justice?

TriNiTY TerM iSSUe

eSSeNTiAL reADiNG FOr BArriSTerS

www.ba st magaz n .com

STEPHEN COBB QCFamily Law Specialist

.21

Bar Council W lcom s Lor JusticJacksons's pr limIinary R ort

e st . 1999

A British Bill of Rights and ResponsibilitiesIt all looked so different in July 2007 - a newprime minister: a new approach. A greenpaper heralded the ascent of Gordon Brownby promising to make the executive moreaccountable. It even speculated that we mightneed a concordat between the executive andParliament or a written constitution. Now,

we have a further green paper, Rights andResponsibilities: developing our constitutionalframework.

The political territory occupied byproposals for a bill of rights - with or withoutadditional duties or responsibilities - is gettingcrowded. Northern Ireland was promised onein the Good Friday Agreement and its HumanRights Commission finally came up with a draftlast December. The UK Parliamentary JointCommittee on Human Rights took it upon itself to draft one last August. David Cameron hascalled for one over the last couple of years. Wecan now add the governments proposals. Debateon the latter can be followed on its own website

(http://www.governance.justice.gov.uk/). Thisallows you to keep up with the debate on Twitter,webcasts, webchats and emailed discussion.Indications are, alas, that trade is slow. Only fourpeople, for example, contributed to the thread onresponsibilities during the whole month of April.

Reasons for such low response to

the Ministrys big debate are not hard to find.Gordon Brown, with the saving of the economyon his mind, appears to have lost interest inthe democratic project. Even if he had not, hiscabinet are reportedly hostile to anything thatmight be interpreted as extending rights. Theoriginal proposal for a British Bill of Rights andResponsibilities has fallen foul of a numberof somewhat recalcitrant forces in devolved

jurisdictions, notably the Scottish National Party,that see little to gain from linking themselves tosuch a Westminster initiative. Anyway, publicattention is switching from Labourto the Tories. Finally, the latest greenpaper offers only a consultation without

6

18

p.10

Ch ri Booth urg s Manch st r firms tonurtur f mal tal nt

dAngerous minds

Th ir cting min f nc hassurviv th ju gm nt in F rguson but to

sca liability, larg com ani s will nto consi r th r l vant statut , argu s

Thom dyk .

sentencing solutions

Th unsustainabl l v ls of o lim rison in Britain to ay is in liblylink with short-t rm s nt ncing. Asignificant ro ortion of rison rs housin UK risons ar on s nt nc s of ony ar or l ss, an it is th magistrat swho rimarily han own s nt nc s tothis grou

By Roma Hoo r, dir ctor, Mak JusticWork

JAcKson: A review for reviewssAKe or A vAliAnt effort?

On 8 May th att ntion of th l gal worlturn to th subj ct of civil litigationcosts as Jackson LJ r v al th t rmsof r f r nc of his y ar-long r vi w of thmatt r in his r liminary r ort.

By Bob Gor on, CeO, 1st Class l gal


2/21

03 the barrister Dangerous mindsThe directing mind defence has survived the judgment in Ferguson but to escapeliability, large companies will need to consider the relevant statute, argues Thom Dyke .

T

he Court of Appeal in

Ferguson v British Gas

[2009] EWCA Civ 46

sent a strong message

that it was not prepared

to accept any attempt

to escape liability for criminal and tortious

acts by hiding behind what was termed by

Sedley LJ as the privilege of incorporation.

The decision provides a timely warning for

large organisations who rely on automated

systems to provide customer services, but

what effect will it have in practice for the law

of corporate criminal liability?

Facts

Ms Ferguson brought her claim against British

Gas under the Protection from Harassment

Act 1997 in respect of their threatening

behaviour following her move to another gas

supplier in May 2006. From August 2006,

British Gas sent Ms Ferguson an unstoppable

torrent of bills and threatening letters. The

letters consisted of three variously connected

threats; disconnection, legal proceedings,

and reporting to credit rating agencies. Ms

Ferguson attempted to contact British Gas byphone, through writing a number of letters

(including two to the Chairman of British

Gas), and indirectly, via a complaint to

Energy Watch. Her attempts were met by a

combination of unresponsiveness, apologies

and additional threats.

British Gas applied unsuccessfully to strike

out the claim. On appeal from the decision of

HHJ Seymour QC, they argued, inter alia , that

they could not be held liable as she had not

brought the claim against a named employee

of the company. They contended that Ms

Ferguson needed to sue either an employee

for whose acts the company would be

vicariously liable, or someone with sufficient

seniority to be regarded as the directing

mind of the company. Furthermore it was

argued by counsel for British Gas, that as the

threats had been generated by an automatic

computer system, Ms Ferguson should have

known to not take them as seriously as if they

had been from an individual.

The Court of Appeal had little sympathy with

these arguments, and rejected the appeal in

a robustly worded judgement. In particular,

Sedley LJ noted the absurdity which would

result from a situation whereby large

organisations could hide behind corporate

structures to defend their actions. It would

mean that the privilege of incorporation not

only shielded its shareholders and directors

from personal liability for its debts, but

protected the company itself from legal

liabilities which a natural person cannot

evade.

Counsel for British Gas came in for particular

criticism over the failure to provide as full a

citation of authority about corporate liabilityas might be appropriate (per Jacob LJ). As a

result, the Court of Appeal asked their judicial

assistants to carry out further research into

the recent case law. This led to a raft of

further cases being considered, including;

Essendon Engineering v Maile [1982] Crim

LR 510; Group Newspapers v SOGAT [1987]

ICR 181; Tesco v Brent [1993] 1 WLR 1037;

Re Supply of Ready Mixed Concrete (No.2)

[1995] 1 AC 456; Meridian Global Funds

Management Asia v Securities Commission

[1995] 2 AC 500; Re British Steel [1995] 1

WLR 1356; and Cambridgeshire CC v Kama

[2006] EWHC 3148.

Corporate ego

By rejecting the corporate liability argument

raised by British Gas, has t he Court of Appeal

effectively neutered the requirement to bring

an action against a directing mind? The

common law has traditionally been quick

to allow civil claimants to recover against

corporate bodies through the mechanism

of vicarious liability. When it comes to

determining criminal liability however,

courts have been required claimants to

jump through the hoop of the identification

doctrine.

The classic formulation of this principle

was laid down by Viscount Haldane LC

in Lennard's Carrying Co Ltd v Asiatic

Petroleum Co Ltd [1915] AC 705:

A corporation is an abstraction. It has

no mind of its own any more than it has a

body of its own; its active and directing will

must consequently be sought in the person

of somebody who for some purposes may

be called an agent, but who is really the

directing mind and will of the corporation,

the very ego and centre of the personality of the corporation.

This doctrine has had the effect of imposing

a tough burden on claimants. Bringing

a claim against a small company will be

relatively easy, where there may be only one

or two individuals who comprise the entire

management structure. However, claims

will be much more difficult to bring against

larger organisations with complex internal

structural arrangements.

It is worthy of note that the House of Lords

in Lennard's, considered that where the

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3/21

04 the barrister directing mind defence was raised in

response to an action, the responsibility for

discharging the burden of proof lay with the

company raising it. As the defendant had

failed to call the relevant individual to give

evidence, the House of Lords held that he

should be regarded as the directing mind of

the company for the purposes of the claim.

Applying the doctrine

The doctrine of identification has resulted in

a situation where large anonymous corporate

entities are better placed to escape criminal

iability than their smaller counterparts. Asthe subsequent case law shows, the courts

have made some attempts to mitigate against

ts worst effects.

The rule was applied in the leading case

of Tesco v Nattrass [1972] AC 153. This

concerned a prosecution under the Trade

Descriptions Act 1968. Tesco escaped liability

through the defence provided under s.24(1),

which applied where the offending action

had been undertaken by the act or default

of another person and Tesco had exercised

all due diligence to avoid the commission of

such an offence. Responsibility rested on

the actions of the individual employee, and

t was held that on the appropriate statutory

construction the company could avoid liability

via the s.24(1) defence.

Tesco was subsequently involved in a case

which turned on the application of the same

principle to a different statute. In Tesco v

Brent [1993] 1 WLR 1037, the Divisional

Court rejected the argument that Tesco as a

corporate entity could not have knowledge

about the age of a 14-year-old purchaser

of an 18 certificate video. However, the

court noted that the language in the Video

Recordings Act 1984 referred to knowledge

and information and not due diligence.

Staughton LJ recognised the potentially

harsh effect that could arise as a result of

taking too strict an approach to applying the

identification doctrine, stating that he could

not believe that Parliament intended the

large company to be acquitted but the single-

handed shopkeeper convicted.

Statutory interpretation

In Ferguson, the relevant statute was the

Protection from Harassment Act 1997. It

does not contain a defence of corporate

due diligence, or accidental harassment.

Instead it uses comparable language to the

Video Recordings Act. For instance, s.1(2)

refers to the knowledge, or presumption of

knowledge, of a reasonable person, in relationto the offence. Perhaps unfortunately, as the

case only concerned an application to strike

out, the court was not addressed in detail as

to the question of the level of knowledge of

British Gas in this particular case.

The court was careful to limit the application

of its decision in Ferguson to the instant

case. As Jacob LJ noted, one cannot just

jump from one Act to another and say the

rule for one is the rule for the other. Whilst

it is still the case that each statute will need

to be approached sui generis, some general

points can be discerned from the authorities.

Crucially, where the legislation in question

does not contain a due diligence defence,

or refers to real or imputed knowledge, it is

unlikely that companies raising a directing

mind defence will be successful.

The approach of the courts has been

largely sympathetic in relation to individual

claimants bringing actions against large

corporations. Indeed, the judgment opens

with Jacob LJ opining that it is one of the

glories of this country that every now and then

one of its citizens is prepared to take a stand

against the big battalions of government or

industry. Sedley LJ highlighted the disparity

of arms, noting that it would be remarkable

ifthe privilege of incorporation not only

shielded its shareholders and directors from

personal liability for its debts but protected

the company itself from legal liabilities which

a natural person cannot evade.

Future developments

There has been a recent legislative push to

restrict the loophole created by the directing

mind principle. The Corporate Manslaughter

and Corporate Homicide Act 2007 has made

it significantly easier for the police and

Health and Safety Executive to bring an

action against a large corporate body for

manslaughter occurring as a result of fault on

the part of the body itself. Following on from

this landmark piece of legislation, the Healthand Safety (Offences) Act 2008 introduced

the option of custodial sentences as well as

an unlimited fine in cases involving a breach

of health and safety legislation.

While the ruling in Ferguson does not close

the door to raising a directing mind defence,

it does raise serious questions about its

application in future cases. The question of

how Ferguson applies to future cases is likely

to be subject to a considerable amount of

debate by lawyers on all sides of the issue.

------------------------------------------------------

Thom Dyke is a barrister.

V:\FERGUSON V BRITISH GAS\THE

BARRISTER\FERGUSON - THE BARRISTER

[TD 15-04-09].DOC

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06 the barrister 07 the barrister

Sentencing solutionsThe unsustainable levels of people imprisoned in Britain today is indelibly linked withshort-term sentencing. A significant proportion of prisoners housed in UK prisons are onsentences of one year or less, and it is the magistrates who primarily hand down sentencesto this group

By Roma Hooper , Director, Make Justice Work

Britain is locking up its

citizens at record rates.The number of prisoners

in England and Wales

has increased by 30% in

the ten years from 1997

to 2007. When Labour came to government

n 1997, the prison population was just

over 60,000. Previously it took nearly

four decades (1958 to 1995) for the prison

population to rise by 25,000. The buildings

that house them are bursting at the seams

and overcrowding is endemic. It is in this

context that the debate over the sentencing

powers of magistrates was reopened in April

with the announcement that the court system

will soon undergo an overhaul.

Magistrates are a vital and important part of

the UK court system but the number of cases

they are dealing with has fallen away bybetween a quarter and a third over the last

few years - due in part to the abandonment

of Custody Plus when magistrates could have

sentenced someone to an under 12 month

sentence, most of which would actually have

been served in the community. At the same

time, police powers to deal with more minor

offences have reduced the number of cases

coming to magistrates courts Yet, since

1997, 4,000 new criminal offences have been

created. Thats seven laws a day, and it is

the magistrates court that largely has to

mplement them. More of a concern is that

there has been an up-tarrifing of certain

crimes which has created a net widening

phenomena criminalising more membersof society. The proposed solution by the

Magistrates Association to increase the

sentencing powers of magistrates giving

them the ability to sentence offenders to a

maximum of one year in prison instead of

the current six month limit may provide

temporary respite for the public but does

not address the fundamental problem

that prisoners receiving less than a twelve

month sentence receive no support from

the probation service after custody, unlike

if they were serving a community sentence.

The suggested change would inevitably have

an immediate knock-on affect for Britains

prison system by potentially driving up

the short sentenced prison population

to unmanageable levels in an already

overcrowded system.

The unsustainable levels of people

imprisoned in Britain today is indelibly linked

with short-term sentencing. A significant

proportion of prisoners housed in UK prisons

are on sentences of one year or less, and

it is the magistrates who primarily hand

down sentences to this group. In response

magistrates say that rather than increasing

their powers to reflect the changing face

of Britains laws, the sentencing options

open to magistrates when hearing cases has

contracted or at best stayed still. Unlike

custodial sentencing where a magistrates

options are clearly defined by guidelines,

community sentences for low-level offenders

who require, for example, drug treatmentand mental health orders are inconsistent

and vary from area to area. Furthermore,

national and local funding cuts mean that

a magistrate is often hamstrung when

deliberating about accessible appropriate

community sentences for those on the cusp

of custody.

All this adds up to an over-reliance on prison

for offences that while unacceptable and

damaging to victims and wider society

should not warrant a custodial sentence. The

lack of options open to magistrates when

sentencing is a symptom of a government

which has blindly followed a lockem up

approach to criminal justice in attempt

to appear tough on crime. Rather than

adequately distributing funds into establishing

a coherent and robust set of alternativesto prison for low-level offences which can

reduce re-offending, the government has

created a sentencing culture where custody

has become the default option. Doubling

the length of custodial sentences magistrates

can hand down to 12 months is counter

intuitive to their role as volunteer members

of their local communities. It remains totally

appropriate for those more serious cases to

be dealt with in the Crown Court.

So unless we divert money away from prisons

into badly needed community sentences

which can offer a more holistic, wrap around

set of rehabilitative interventions such as

drug and alcohol treatment programmes,

literacy, accommodation and job /training

opportunities the system will continue to

perpetuate an unrealistic expectation that

building more prison places is the answer to

all ills. The reality is that prison does little

to reduce the number of victims and does

absolutely nothing to reduce re-offending for

short sentenced prisoners.

In conjunction with pressure from magistratesthere needs to be a wide spread challenge to

government by our judiciary, campaigners,

key stakeholders and members of the public

pushing the line that the existing prison

system is utterly disingenuous to victims and

the public. Imprisoning low-level offenders

does not improve the publics sense of

safety and well-being and cannot reduce the

likelihood of low level offenders continuing

to re-offend. More low-level offenders need

to be funneled into robust alternatives to

custody rather than sucked into the prison

system. If things continue as they are

magistrates will soon find themselves in a

position where 12 months custody seems

inadequate. The real imperative is to support

magistrates to ensure that they are confident

in their choice of community sentences for

low level offenders. Surely in this economic

recession it is time to divert money away

from building new prison places into robust,well managed alternatives to custody so

that magistrates' powers are not reduced.

On the contrary, rather than focusing on

sentencing people to prison for ineffective

short sentences, they can confidently use

community sentences. Evidence confirms

these are more successful at reducing

re-offending and most importantly, reducing

the number of victims. Let common sense

prevail it is not just about saving money but

it also about what works.


5/21

08 the barrister

Financial Loss Modelling in LitigationFinancial loss modelling is a valuable and cost effective tool in dispute resolution.

By Frdrique Hardy , senior manager in the London office of RGL Forensics

Complex mathematical

models have been widely

used and relied on to value

the assets, the returns,

and the risk profiles of

the mortgage-backed

securities which precipitated the credit

crunch crisis. These models have come under

severe criticism for becoming so complex

that their end users could not understand

them properly and so disconnected from

the underlying economic reality they sought

to reflect as to become misleading (not to

say costly). Paradoxically, in the current

climate, companies are more keen than ever

to quantify financial losses of increasing size

and complexity, which makes financial loss

modelling all the more relevant.

Handling large amounts of data

Loss modelling in the context of legal disputes

s the task of assembling financial data and

variables to arrive at a single or a range of

calculations. One of the key advantages of

a loss model is its ability to handle large

amounts of data in a comprehensive and

controlled manner.

Case study - the catering firm

In the case of a dispute between a large

catering firm and one of its suppliers, the

supplier alleged that the catering firm had

purchased consumables from alternative

suppliers in breach of a sole supply agreement.

Although the consumables represented

a small proportion of the catering firms

overall cost base, the claim was significant

as the breach was alleged to extend over

several years and across several thousand

catering outlets. The catering outlets ranged

from railway stations, hospitals, schools,

to corporate entities and sporting events

with consumption patterns which differed

significantly between outlets.

It would have been neither cost effective

nor feasible to review the purchases of each

individual outlet separately, nor indeed,

to prepare several thousand individual

calculations. Another difficulty was to

establish which outlets had been compliant

with, and which outlets had been in breach

of, the supply agreement.

To overcome this, a financial model was

created. A large amount of financial data

was collated for each outlet, and input into

the model. Outlets were then grouped by

category of cost behaviour and divided

between those that were compliant and those

not, depending on whether their actual spend

with the supplier was deemed to be in line

with expected usage over the period under

review. The data within the compliant group

was used as a benchmark to calculate losses

at the non compliant outlets. A key area of

discussion was how to determine the level of

spend which would show exclusive relianceon the supplier. The strength of the model

was that this assumption could be changed

with one click; all several thousand outlets

being automatically re-categorised between

the compliant and the non compliant, and

the calculation would update in a moment.

Furthermore, various scenarios were

integrated into the model to assist legal

teams in understanding the financial issues.

Reflecting complex revenue and coststructures

Financial modelling is also useful when

quantifying damages arising in companies

that operate in areas of industry with complex

revenue and cost structures, which do not

respond well to accounting simplification. In

such cases, although accounting data may

be of a manageable size, the loss can be

more accurately computed if it reflects the

complex underlying economic principles of

the companys operations.

Case study - the airline

Take a hypothetical example of the financial

loss suffered by an airline following the crash

of one of its aircraft. The airline could suffer

disruptions to its entire operations, with a

diminished fleet flying emptier planes and

losing both revenues and profitability against

the relatively high cost base of maintaining

its flight schedule. Loss modelling can be

used to measure the impact of the accident

on each revenue stream as well as each

cost line. For instance, passenger revenue

can be modelled for each plane on each

route and analysed between scheduled flights

and charter flights. Costs can be computed

for each flight depending on the route and

aircraft used. The results are accumulatedinto a calculation which accurately reflects

the causal link between the accident and

calculated consequential losses. The model

can be flexed for sensitivity analysis of a

number of key loss drivers such as; aircraft

swapping between routes, changes to seat

pricing, reductions in flight occupancy ratios,

cost inflation, and fuel surcharges.

The detail of the analysis combined with the

ability to flex the model for changes in key

assumptions gives a high level of assurance

as to the accuracy and reasonableness of the

overall calculation.

Bringing together various areas of expertiseComplex cases often require input from

various experts. In this context, loss

modelling can be used to bring together

and summarise the findings of experts from

different disciplines.

Case study - the copper mine

In the case of an open pit copper mine

which suffered a landslide, a financial

model was created to quantify economic

damages. The mining plan was reviewed by

mining experts, costing by accountants, andcausation by lawyers. The model was set up

to calculate various loss scenarios depending

on alternative mining sequences submitted

by the mining engineers. The model output

was used to determine which course of action

would minimise the economic loss while

maximising operational safety. The model

was also used to compare and reconcile

actual losses incurred after application of

various causation issues, as advised by the

legal team.

The flexibility of the model meant that, as

review of the loss progressed, each team

could update its findings, and the calculations

could be updated quickly and effectively.

Enhancing understanding of a loss

Although financial models are usually relied

on in cases where matters of quantum are

complex, they also offer a unique opportunity

to stress test quantum for common sense.

Models which are designed with extensive

what if? analysis in mind can help enhance

the legal teams understanding of how the

numbers work.

Case study - the commercial building

Following a temporary shutdown at a

commercial building due to a construction

defect, a financial model was created to

compare several options for planned

remedial work. What would the losses be

if the building was shut fully over a short

period of time, and then re-opened? What

would the costs be if it was shut in phases

instead? This financial model relied on both

factual data and assumptions. The factual

data, such as actual historic sales and rates

of profit, did not change. Assumptions were

applied to this data, for instance the length

of repairs, the level of disruption during

repairs, or the impact of the economy on

the tenants, to project losses both for the

building as a whole, and for each individual

tenant separately. These assumptions were

segregated from factual data and could be

changed easily, enabling users to request

alternative scenarios and understand

how numbers changed depending on theassumptions input into the model.

This scenario analysis was carried out at

round table meetings, with the model shown

on screen and its various inputs and outputs

being updated and debated live. The legal

team, who was not involved in the detail of

the financial review, found this a very helpful

tool to gain a better understanding of the key

drivers of the loss.

Assisting in dispute resolution

As illustrated in the various examples above,

loss modelling has a number of strengths Accurate and comprehensive

handling of large amounts of data Integration of various areas of

expertise into a single calculation model Segregation of factual data from

assumptions Flexibility in producing scenario

and sensitivity analysis Live one-click updating

It is these characteristics that make loss

modelling such a strong tool in dispute

resolution. Loss models are useful throughout

the litigation cycle.

Loss models can be used by a legal team in

the development of a pre-litigation strategy.

This is because they can be set up to quantify

the financial value of individual legal issues,

as well as measure the combined effect

of issues which may overlap in terms of

quantum. Assumptions can be changed for

best and worst case, which can be helpful

when establishing areas of strength and

weakness in a case, and also for Part 36

offers.

Financial loss models are also useful in

highlighting areas of disagreement between

experts. Whereas factual data should be

relatively easy to agree, disagreement on

points of methodology or assumptions can be

segregated and their monetary value isolated.

They are also helpful when isolating

matters which are outside the expertise of

the accountant, and presenting the Courtwith alternative scenarios depending on the

findings of a team of experts.

Their flexibility is also an asset when it

becomes necessary to quickly incorporate the

impact of new disclosure during the litigation

process, especially when deadlines are tight

and there is no time to prepare a completely

new set of calculations.

Finally, by their very nature, they are ideally

suited to developing a settlement matrix in

alternative dispute resolution.

Such versatility, when used appropriately,

makes loss modelling a surprisingly cost

effective tool. It is robust in producing

accurate calculations that rely on complex

underlying analysis, and it has one-click

flexibility in updating those calculations

for new information, as well as producing

ranges of alternative scenarios. This makes

it an essential tool in calculating damages.

-----------------------------------------------------

Frdrique Hardy is a senior manager in

the London office of RGL Forensics, who

specialise in forensic accounting and the

quantification of damages.

www.rgl.com

09 the barrister


6/21

10 the barrister

a time limit. This, in the parlanceof government, is an idea beingkicked into the long grass.

The fundamental problems that the proposal for a bill of rights brings

together too many contradictory themes.For a start, any use of the phrase itself isa claim of resonance with the great Billof Rights 1689 that still sets the course forthe modern British state a constitutionalmonarchy, the establishment of a protestantreligion, a sketch of modern liberties and aine of succession that cuts out the Stuarts.

These are big boots in which to strut andonly really justified by a degree of political

consensus, currently unrealistic, combinedwith significant content, currently unclear.Any proposal for a bill of rights necessarilyentails consideration of the HumanRights Act 1998, the role of the EuropeanConvention on Human Rights and theposition of the European Court of HumanRights. The government explicitly rules outany qualification of the European Conventionn its green paper. David Cameron is not

always so clear. In a 2007 presentation tothe Police Federation, he promised to repealthe Human Rights Act and give the policemore power. Ken Clarke, now brought in togive additional weight to the shadow cabinet,previously called his bosss proposals for abill of rights xenophobic and legal nonsense.The Daily Mail, meanwhile, continues itsnear-hysterical demonisation of humanrights, making little distinction between theHuman Rights Act, which could be amendedor repealed, and the underlying EuropeanConvention, to which the UK is a signatoryand by which it is realistically bound for theforeseeable future. UK foreign policy is inenough global difficulty without having toexplain to the world the attraction of joiningBelarus as the only country in geographicalEurope that spurns membership of theCouncil of Europe.

The government apparently wantsto keep the Human Rights Act but is attractedto the idea of adding a list of additional dutiesand responsibilities. It would like to re-enforce British identity by restating a list of duties on those within the country. It is alsonterested in exploring whether there are any

home-grown rights that could be added tothose of the Convention. The authors of thepaper are, happily, not entirely devoid of asense of irony or perhaps a gallows humour- as they go about their endeavours. Theyspeculate that a list of duties might include

the responsibility to pay taxes. Their exampleis the Italian constitution. This requireseveryone to contribute to public expenditurein accordance with their capacity. However,those currently suspected of Italian taxevasion include Silvio Berlusconi, FabioCapello and the Venetian gondoliers thelatter shopped by way of an ugly divorce andvengeful wife of one of their number. Italy isnot a good precedent for the efficacy of sucha general provision.

New rights are equally tricky. BothLabour and the Conservatives mention thepossibility of a right to jury trial as a specificBritish right as traditional as roast beef. The

green paper mentions that 89 per cent of people supported protection of this right ina recent opinion poll. The difficulty, however,lies, with the devil, in the detail. The greenpaper points out that juries currently try only5 per cent of all criminal cases. S43 CriminalJustice Act 2003 even allows the removalof the right to jury trial in certain cases of serious fraud, a proposal that has, in the past,appealed to Conservative as well as Labourgovernments. So, any statement of the rightis likely to be pretty guarded probablyalong the lines: Every one has the right toa trial by a jury in a serious and appropriatecase. Fear of public opinion currently keepsthe government from bringing section 43into force. It is difficult to see that a guardedgeneral statement of the kind proposed addsmuch.

Proposals for the articulationof rights in relation to social, economicor environmental matters become evenmore complicated. The British public,inconveniently for government finances,overwhelming support the statement of aright to health care. Indeed, they seriouslywant to enforce it in the courts if it relatesto such matters as the refusal of anti-cancerdrugs on the grounds of expense. NeitherGordon Brown nor David Cameron is tookeen. The gGreen Ppaper suggests that wemight articulate a series of declaratory rightsthat are articulated by, but not enforceablethrough, a bill of rights. No lawyer, and fewmembers of the public, can see much benefitin that.

The European Convention onHuman Rights sets out a minimum set of rights that apply to everyone be they Roma,gypsy, paedophile, asylum-seeker, criminal,prisoner. Majority public opinion sometimeswants to qualify those rights. People ask,for example, why obnoxious foreigners

cannot be sent to their home states even if they practice torture routinely or will notget a fair trial. Politicians are uneasy aboutexplaining that decisions of the EuropeanCourt of Human Rights mean that someonecannot be sent back from the UK to a countrywhere there is a real risk that they will betortured. They want to hint that there mightbe qualifications, restrictions, reservationsthat deprive undesirables of such protection.In reality, not even full abolition of the HumanRights Act would do that. The UK is boundby treaty to comply with the Convention anddecisions of the court in which the UK is aparty. To be fair, the green paper, though not

every Cconservative commentator, explainsthat. But, the government is drawn to thenotion of drafting a declaratory or otiose listof responsibilities as a degree of recognitionof the problem.

The jostling of both main politicalparties around some idea of a bill of rightssuggest that both see political advantage inhedging their bets on the subject of humanrights and, implicitly, the Human Rights Actitself. However, this Aact is, technically, arather elegantly drafted bit of legislation, theeffect of which is now becoming clearer and its

jurisprudence more settled and predictable.The European Convention on Human Rightsis a largely unexceptional statement of values,drafted by a British team at the ForeignOffice. Things could be improved. Parliamentcould have the courage to legislate on privacyand freedom of expression instead of leavingit to the judges. The quality of the EuropeanCourt could be improved; the Russians couldbe pressured to agree to measures to speedup its work. UK politicians could celebratethe protection of liberty that the EuropeanConvention gives such as the prohibition of the retention of the DNA of innocent people.The Human Rights Act retains the supremacyof Parliament and does not allow a court tostrike down legislation.

Would it not be much better if we just let the Human Rights At settle into thearchitecture of the constitution and, a decadeor so further on, see if we need to addressother elements of the constitutional edifice?But that would be logic: this is politics.

------------------------------------------------------

By Roger Smith OBE , Director, JUSTICE

11 the barrister

Student Barristers Negotiate the Long Road toCompetition SuccessBy Charles Shoebridge

A s with so much in

life, the invitation

seemed harmless

enough. Arriving

in November 2008,

the email from Anna

Cheunviratsakul, senior lecturer on the Bar

Vocational Course (BVC) at the Bloomsbury

Branch of the College of Law, invited students

to enter the annual college negotiation

competition.

Negotiation is one of twelve core assessments

comprising the BVC finals and, therefore, it

seemed sensible to pursue any opportunity

for practice. That, at least, was the logic I

put to my classmate Charlotte Whitehorn, as

I suggested we should take part. Yes, she

replied, it will be fun.

Notwithstanding, perhaps, the memories of

those who once studied for Bar Finals, the

workload on the BVC is heavy. If however

our decision to take on yet more work, along

with mooting, pro bono and other activities,

was questionable, it was one also made by

the thirty-seven other teams of two who,

likewise, entered the competition.

Within days some two thousand words of

common facts and confidential instructions

in relation to our client arrived. Singing

sixties television pig stars Pinky and Perky

were coming out of retirement, and we were

to represent our client in his bid to become

agent for the pigs now retired, and somewhat

reluctant, creators.

This was to be our first experience of

formal negotiation other than as the conflict

resolution we had learned on our course.

The techniques taught however appeared to

be equally suited to a deal-making scenario.

Thus, having spent hours analysing facts and

issues likely to arise, researching relevant

law, assessing our strengths and weaknesses,

and attempting to anticipate our opponents

positions and tactics, we hesitatingly entered

our first competition - the negotiation mantra

of position, question, bargain, conclude very

much in mind.

With around a third of BVC students taking

part, the first round was decided on a knock

out basis. Teams recorded their twenty-five

minute negotiation on a DVD, to be assessed

by a course tutor who then delivered detailed

written feedback to each team.

The second round, to which nineteen teams

including ourselves progressed, was decided

in similar fashion. This time, aristocratic

rural neighbours were in dispute in relation

to boundaries, nuisance and trespass

all of which, in the interests of avoiding

embarrassment and costs, as well, no doubt,

as a wish to adhere to the spirit of the CPR,

the parties desired to resolve by negotiation

rather than recourse to the courts.

Our feedback noted that in both rounds

we had, apparently, rather dominated our

opponents. For weeks, we blissfully assumed

this comment to be positive, until our tutors

pointed out that, in negotiation, the idea is

of course to get along with the opposition,

working together towards mutually

acceptable resolution.

Determined therefore to be more submissive,

or perhaps more collaborative, in our

approach, on 28 January we went into the

final of the college competition, judged

live by Anna Cheunviratsakul and Stephen

Illingworth, Acting Head of the Bloomsbury

BVC. On this occasion, a new partnership

agreement was needed between squabbling

osteopaths complicated, in what appeared

to be a developing theme, by two of the

partners having a relationship without the

knowledge of the third.

The following day, we learned we had been

selected, from the ten who had reached the

final, as one of two teams to represent the

college at a regional heat of the National

Negotiation Competition, open to every

undergraduate and postgraduate law school

in England and Wales.

With the arrival soon afterwards of our

emailed instructions, winning the college

championship soon didnt appear to have

been quite such a good idea. A contract was

to be negotiated for the construction of a

stadium in Georgia for the rugby world cup

in 2015. Along with competing interests to

consider and spreadsheets to complete, we

were also faced, by now almost inevitably it

seemed, with the wife of one board member

having run off with another, taking half his

prized possessions with her.

p.1


7/21

12 the barrister 13 the barrister Arriving for the regional heat in Birmingham

on 21 February, teams performed two fifty

minute negotiations, each judged by a panel

of three academics or practitioners in a sort of

negotiation X Factor that assessed negotiation

outcomes, preparation, flexibility, teamwork,

ethics, and relationships with the opposing

team. Following each negotiation, teams

were further assessed in a ten minute period

of critical self reflection - an opportunity to

demonstrate potential improvements having

been identified, and lessons learned.

We now for the first time negotiated against

students from colleges other than our own

and, to our relief, found that the basic

techniques taught could, appropriately

adapted, be deployed effectively in most

situations. Of the sixteen teams at each of the

three regional heats, twelve in total, including

Charlie and myself, were selected to compete

n the national final.

The competition is sponsored by the Centre

for Effective Dispute Resolution and, as a

prize, the twelve winning teams attended an

excellent advanced negotiation techniques

training day at their London offices. Thus

equipped, on 28 March battle was joined at

Liverpools John Moores University, the home

of the 2008 competition winners.

For the teams, suffering sleep deprivation

from a night of last minute preparation and

false hotel fire alarms, the competition proved

a feat of endurance. Over some seven hours,

three relatively complex negotiations were

nterspersed only with preparation, feedback,

reflection, and yet more preparation.

Continuing the rugby theme, they included a

three way negotiation to decide a semi-final

venue, a multi-faceted hotel dispute, and a

collaborative exercise to create and agree

a multi-million pound closing ceremony.

All involved many hours of prior analysis,

planning, and legal and factual research,

together with argument, compromise and

concession to secure agreement and the

clients interests on the day.

By seven in the evening, competing was at an

end. A gala dinner for competitors, coaches,

judges and sponsors followed, after which

the time for announcing the winners arrived.

Notwithstanding the mistakes which Charlie

and I realised we had made, we considered

it still possible that we might have won third,

or even second prize. We soon learned thatthis was not to be.

Just as I apologised to our coach Anna

however, it was announced, much to our

delight and not a little surprise, that we had

won the competition. We were the new

national negotiation champions - a status put

to immediate practical use by the securing of

free wine for everyone in compensation for

the fire alarm disruption of the night before.

Whilst our success in the competition could

be credited to intense preparation, effective

teamwork and flexibility of approach, the

success of the competition itself resulted

from the hard work of all who participated

and, in particular, the organisation of

Mark Saunders, principal lecturer in law at

Kingston University.

As a means of making deals and resolving

disputes the future of negotiation is assured

and, notwithstanding its uncertain future

as part of the BVC, the ability to negotiate

effectively is, arguably, a core advocacy skill.

Even for that reason alone, taking part in the

Negotiation Competition is recommended for

anyone embarking on a legal career, and our

experience of doing so was overwhelmingly

positive. And, yes, a lot of fun too.

------------------------------------------------------

Charles Shoebridge is a graduate of

International History and Politics (Leeds),

was awarded the Graduate Diploma in

Law with Distinction in 2008, and is due to

complete the Bar Vocational Course at The

College of Law, Bloomsbury in June. Having

won the National Negotiation Competition, he

and Charlotte Whitehorn will now represent

England and Wales in The International

Negotiation Competition, to be held in July

2009 in Chicago, USA.

He can be contacted at

[email protected]

The use and abuse of motives and rationality inthe financial services industry

What makes motives in the investment sector unique is the dual-motive situation. In acriminal case, only the suspect either did or did not have a motive to commit the crime,not the victim. But in the financial sector, there are potential motives on both sides of the transaction

By Dr Brian Bloch FATM - University of Muenster

Introduction

Especially when themarkets are dropping,

investors who lose money

try to figure out whether

their brokers or banks did

something wrong. When

there are substantial losses, investors may

come to the conclusion that the real problem

lies not with the markets, but with the

investment itself and/or the seller. If they feel,

after the fact, that it was too risky for them, or

in some way mismanaged or misrepresented,

they may seek compensation or damages. In

such instances, it is common for the seller (or

their lawyers) to point the finger back at the

investor, claiming that he or she understood

the risks and was willing to take them.

Often, the seller will point to previous

investment experience as a justification

that the investor knew what he was getting

and wanted it. The issue of what really

constitutes such investment experience is

indeed a significant topic in itself. However,

the purpose of this article is to consider the

issue of motive as the key to determining

whether the investor would realistically,

and on a balance of probabilities, have gone

ahead with an investment if he/she had really

understood its nature and context.

The nature and meaning of motivesIn law, and particularly criminal law, a motive

is what induces people to act in a certain

way. It causes the decision or behaviour. The

legal system allows a motive to be proven

as a means of illuminating the reasons for

committing a crime. However, in criminal

law, the courts are less concerned with whythe defendant committed the crime, than they

are with whether. In the investment industry,

by contrast, the whether is there for all to

see, but the why is absolutely fundamental in

negligence and damages cases.

The classic false argument

Firms wishing to evade liability for misselling

or recommending unsuitable investments

will generally extrapolate almost any kind

of experience into an assumption that the

investor was well aware of the nature (of

almost any kind) of investment and the

attendant risks. Conversely, investors will

claim that they would never have gone

ahead, had they but known. In the face of

such defences, it is necessary to consider

the motives, not only of the investor, but of

the seller, and to take a long hard look at the

investment itself.

Alternatively expressed, when the losses

are there, firms attempt to justify their

recommendations on the basis of an

extremely generalised desire to make (a lot

of) money, largely irrespective of whether or

not the decision to proceed really made any

sense at the time for the buyer in question.

However, even if people are truly greedy and

out to make a quick profit, they are likely to

act in a certain way and not in another. That

is, they will act rationally.

After all, how many investors out there are

really willing to take extreme risks with their

money? Not many, and for those unfortunate

few, there is generally sufficient hardevidence to demonstrate such motives and

patterns of behaviour. And no one would take

truly ridiculous, downright foolish risks with

their own money.

But the seller may undoubtedly take such risks

with someone elses money. Consequently, no

firm or advisor should be permitted to defend

himself by claiming that it was the investor

who really wanted to proceed with what was

somewhere between a lousy investment and

financial suicide. It is essential to examine

damages or negligence cases in this context

of credible movies.

The double motive in financial cases

The crucial point is whether a rational and

informed investor would have had a plausible

motive to take on a particular asset and level

of risk. And equally crucial, how strong was

the motive of the seller to sell? Was this a

particularly lucrative item? It is the interplay

of motives - or lack thereof - on both sides

that reveals the truth.

What makes motives in the investment sector

unique is the dual-motive situation. In a

criminal case, only the suspect, either did or

did not have a motive to commit the crime,

not the victim. But in the financial sector,

there are potential motives on both sides of

the transaction. The buyer is motivated by the

desire to make a profit and the seller likewise.

If it was an essentially bad investment from


8/21

14 the barrister the start, but one that made money for the

seller, on a balance of probabilities, this was

a misselling. If, on the other hand, the asset

was basically sound, but went wrong for

egitimate reasons beyond the control of the

seller, there should be no damages claim.

Motives and the perennial conflict of interest

The intrinsic problem in the investment

ndustry is that higher-risk investments

are more profitable for the seller than low-

risk ones. Simultaneously, however, the

nvestment literature has demonstrated quite

clearly that most people are risk averse.Finally, investment psychologists have proven

that people suffer more from losses than they

enjoy the equivalent level of gains.

This means that in both psychological and

financial terms, sellers are more likely to

push high-risk products than buyers are to

buy them - knowingly and deliberately, that

s. There is probably nothing more important

n the context of investment motives than this

point. In the absence of clear and convincing

evidence of risk-friendliness or risk-aversion,

t should be assumed that investors want a

moderate to low level of risk. Few investors

are really risk friendly, and certainly not

those who really cannot afford to lose money.

Irrational versus rational high risk

Even if someone is really risk friendly,

such motives cannot be ascribed unless the

nvestment made sense. A truly adventurous

nvestor will obviously still attempt to avoid

stupid risks that are statistically likely to

end in disaster. If the investment in question

was, to put it bluntly, quite mad, it is absurd

to assume that the person really understood

and wanted it.

For instance, an 80 year old lady would be

rrational indeed to put 80% of her assets

nto the stock market, particularly if equities

were relatively expensive at the time. Even

a 45 year old man would be very foolish to

have such an undiversified and all-the-eggs-

in-one-basket portfolio. On the other hand,

a stockbroker would have a very compelling

motive to foist such an investment on the

unwary. After all, that is his stock in trade

and he does well out of the deal.

Similarly, no one would invest a large

proportion of his/her wealth in what is

nothing more than a so-called closet tracker,

a standard collection of equities that simply

goes up and down with the market. There is

no motive for the buyer in this instance, butthe seller, once again, earns handsomely from

a low-maintenance product. The point is that

if the investor wanted to buy the market,

he would do through a real index tracker at

lower cost and complete transparency.

Talking of transparency, excessively complex

and cost-laden certificates or insurance

policies which are commission-heavy and

financially inefficient are similarly purchased

only by the nave and exploitable. To ascribe

implausible motives after the fact is an old

trick, and a very unjust one.

Where people are genuinely risk friendly, they

would invest in a sensibly diversified portfolio

of high-risk assets, such as a prudent mix of

foreign funds or corporate bonds, venture

capital, hard assets etc. The prices of theseassets would also not be inflated, but fair

and with the promise of good rates of return.

Furthermore, they would normally ensure

that the portfolio is monitored regularly and

managed actively.

If such investment/s go wrong, it will, in most

cases, subsequently be quite clear that there

was a valid and rational motive to take the

risks at the time of investment. This is a far

cry from post-loss allegations that an investor

understood and wanted an investment that

really made no sense at the time for the

buyer, but was clearly beneficial to the seller.

Especially in the context of a risky portfolio,

passivity and reliance on the fund manager

are signs of an inexperienced investor who

was taken for a ride.

A continuum of probabilities and the zone of

uncertainty

The above examples are particularly clear

cut, but this is not always the case.

In terms of motive to buy, investments run

the gamut from being totally undesirable to

extremely promising. Subject to the crucialcondition that the investor understands

the true level of risk and real nature of the

investment, the likelihood of a knowing and

deliberate purchase can therefore be divided

into five groups along a continuum:

1. Impossible a clear dud that any genuinely

experienced, fully informed and rational

investor would avoid

2. Unlikely

3. Possible

4. Probable

5. Definitely an outstanding investment.

The extreme positions of 1 and 5 are crystal

clear, and 2 and 4 should also not present

major investigative problems. Number 3 is

more problematic. But even so, it is generally

possible to determine whether one is dealingwith a reasonable, rational investment

that went wrong, as such things can, or

whether this was a misselling, an unsuitable

investment or something even worse.

The continuum and the associated motives

to invest are also subject to the usual key

contextual factors, such as the investors

age, personal circumstances and risk profile.

And lets not forget the state of the market

at the time of investment! There is no

plausible motive to plunge in grand style into

overheated and euphoric markets.

Irrationality and Mistakes

There are indeed people who get carried away

by greed, but in such instances, one needs to

look for credible evidence of behaviour of this

kind, and at the seller in order to establish

whether meaningful warnings should have

been and were given. Such a warning must go

considerably beyond small print stating that

the value of your investment may go down

as well as up. Particularly, but not only where

there is a duty of care to the investor, any

honest and indeed prudent firm would ensure

that an appropriate warning is issued to the

buyer that the investment is risky and may notbe suitable.

Similarly, customers who simply make

mistakes are not necessarily liable for them.

Where a mistake was indeed made, the

motive was then misconceived, being based

on misunderstanding, ignorance or deceit and

thus not genuine. Accordingly, depending on

the selling situation and the attendant legal

and ethical obligations, a serious mistake on

the part of the buyer is not much of a defence.

Conclusions

Why would an investor go ahead with

a particular purchase? There has to be

something in it for them, unless they are

irrational, crazy, making a mistake or the

victim of some form of misselling. Most acts of

investment cannot fairly be attributed to greed,

imprudence or error, and neither should such

behaviour constitute a defence for the seller,

beyond true execution only situations. The

person must stand to gain something, or havereason to believe that this is the case - if there

are to be claims that he agreed to it knowingly

and deliberately.

Motive is a reliable behavioural guide in the

financial services industry. But the motives

on both sides count, those of the buyer and

the seller, and it is the plausibility in the

interrelationship that reveal who did what

and why. A comprehensive investigation of

the actors on both sides of the transaction

is indispensible. This includes the

circumstances, laws, obligations and nature

of the investments themselves. On this basis,

firms, courts and ombudsmen should make

decisions as to negligence, misselling and

awards of damages.

------------------------------------------------------

Dr. Brian Bloch

FATM - University of Muenster

Fliednerstrasse 21

48149 MuensterGermany

Tel: +49(0)251 83 29921 (office)

Tel: +49(0) 251 857 0199 (home)

Fax: 0049 (0) 251 83 31438

Main email:

[email protected]

Alternative email:

[email protected]

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15 the barrister


9/21

Change you can believe in: What new rightsagainst associative discrimination mean forclaimants

By Matthew J Smith BA Oxon, PGDL Brookes, LLM Inns of Court School of Law

1. COLEMAN v ATTRIDGE LAW

The recent European Courtof Justice case of Coleman v

Attridge Law 1 demonstratesthe potentially radical

changes the Tribunal Systemcan affect in day-to-day life.

Sharon Coleman worked as a legal secretaryfor a firm of solicitors called Attridge Law.Her son was disabled within the meaningof the Disability Discrimination Act 1995.She was not. His disability required that shetake more time off and consequently morepaid leave to care for her son. Attridge Lawrefused to grant her the same flexibilityn her working arrangements as those of

colleagues with non-disabled children. Shewas then subjected to disciplinary action andAttridge Law failed to deal properly with aformal grievance she lodged against her ill-treatment. Sponsored by the Commission forEquality and Human Rights she brought aclaim for constructive dismissal and disabilitydiscrimination against the firm.

At the prehearing review the tribunalchair decided that the question of whetherdiscrimination by way of association with adisabled person is prohibited by the EqualTreatment Framework Directive 2 should bereferred for a preliminary ruling. On 17thJuly 2008 the ECJ decided that the Directiveand, in particular, Articles 1 3 , 2(1) 4 and (2)(a)5 had to be interpreted as meaning thatthe prohibition of direct discrimination laiddown by those provisions was not limitedonly to people who were themselves disabled.Moreover, Articles 1 and 2(1) of the Directivehad to be interpreted as meaning that theprohibition of harassment laid down by thoseprovisions was not limited to applicants whowere themselves actually disabled. SharonColeman, as an associate, was found to havean action against Attridge Law for disabilitydiscrimination and harassment.On 2nd April 2009, nearly a year on,Harriet Harmans Equality Bill if enacted will extend the law ondirect discrimination to includediscrimination by association and

perception to disability, sex, genderreassignment and age in both theemployment field.

This article considers where a Coleman claim

might emerge and the difficulties posed byexisting arrangements which associates willstill need to overcome in order to bring theircases to tribunal.

2. WHO BENEFITS? ASSOCIATED CARERS

The first group of beneficiaries are associates.But where is the greatest incidence of association? There are currently 6 millionpeople providing unpaid care in Britain, mostof which are women. Moreover 2.6 millionemployees juggle the role of unpaid carer withtheir job 6 . Carers UK 7 have raised the profileof carers who find themselves in the sameposition as Sharon Coleman. In the contextof an ageing population, greater medicalrecognition of psychological and anxietyrelated conditions, cultural diversificationand changes in government policy pertainingto schooling for the mentally disabled and theshift from care in the community to care inthe home are all factors contributing to theneed to re-assess the rights of carers andassociates of disabled individuals.

Progress in the understanding of disabilityThe status quo before Coleman arguablysaw disability discrimination law in the UKfail to keep pace with our understanding of disability as society has evolved. The greatmajority of disability discrimination claimsturn on whether someone actually succeedsin being classified as being disabled. Nowif someone is sacked from work owing toabsences related to depression, then theirclaims no longer exist purely in unfairdismissal alone, now they also arise underdisability discrimination.

Discrimination based on perceptionThis is an area that still needs clarity. If there is a perceived disability, how do youprove this? This issue is especially relevant

to cases which concern perceived illness.Instances of discrimination against anindividual on the basis of perceived disabilityis also complicated because barristers aredealing with the infliction of an act which in

itself tends to cause an illness in the form of stress. These situations might also involvereligion and belief for instance there maybe cases where in a civil marriage one partyis a Muslim, the other is not and adoptsand Islamic surname. However issues of association and perception occur far morefrequently in cases of disability 8.

Sale of goods and service cases A major source of such claims in associativediscrimination will be sale of goods andservices cases. These are situations such aswhere someone tries to enter a cafe attendedby a disabled person and is turned awaybecause of their disabled partner. Similarlyone can imagine the scenario of a disabledperson trying to get into a nightclub and hisor her associates being turned away becauseof their disabled partner.

INTERSECTIONAL DISCRIMINATIONClaims of an intersectional nature havethe potential to multiply the likelihood of discrimination by association. In Bahl v The

Law Society 9, an Asian woman claimed thatshe had been subjected to discriminatorytreatment both on the grounds that she was

Asian and also on the grounds that she wasa woman. The Court of Appeal preferred totry discrimination in this case under separateheads. The powerful minority judgmentof Madame Justice LHeureux Dub in thecase of Canada (A.G.) v Mossop 10 stated: ...categories of discrimination may overlap, andindividuals may suffer historical exclusionon the basis of both race and gender, ageand physical handicap, or some othercombination.

Sexually transmitted diseasesDiscrimination law practitioners mightanticipate claims of an intersectional natureinvolving those who cared for people withHIV and groups with whom HIV is associated

in the public mind such as gay men, black Africans, injecting drug users, familymembers of those injected with HIV, carersand health professionals working in the field.

Cultural differences Associative Discrimination claims may arisein different measures across different culturalgroups. It is an established fact that becauseof social changes, an increasing proportionof single mothers in the UK are of AfroCaribbean origin. Furthermore, anothercultural factor at work here is the number of

Asian families and households where thereare more than one generation live under thesame household stonetime.co.uk 11 .

WomenThere is also talk of the Sandwichphenomena. This concerns women in their30s and 40s who have young kids and elderlyparents.

Poverty Viewing discrimination law in its propersocial context, the state of being a carer isin a large part a correlative of being poor.Instances of associative discrimination aregoing to hit the most vulnerable people first.There is a practical question to be askedhere: What length does a parent go to supporttheir disabled child? Do they go as far as tolose their job?

YES WE CAN?The press made much was made of thegeneral phenomenon of floods of claimsresulting not from changes in the statutebut changes in the case law. This generatedthe impression that Coleman had grantedthe right to reasonable adjustments tocarers of disabled children. In reality SarahColeman was found to have rights in directdiscrimination and harassment. Coleman istherefore limited to old fashioned prejudicecases, direct and indirect discriminationcases and harassment. Moreover the ironymight be that in all probability Colemanactions will make up only a small number of disability discrimination cases.

PRACTICAL DIFFICULTIESReferral agenciesCommunity Advice Bureaus and Law Centreswill have little involvement here preciselybecause there is no legal aid funding fordiscrimination law claims. Moreover thefinancial incentive for referral agents to take upvolume cases creates difficulties for claimantsin associative disability discrimination cases.

Associative discrimination cases will make upa much smaller proportion of cases overall.

These cases may prove to be too complexand require the attention of committedpractitioners.

Employment law BarHow prepared is the employment law bar?There is no legal aid for discriminationlaw work. People suffering this form of discrimination are going to be poor people,vulnerable people. It is very rare then thatthese cases are going to be picked up bysolicitors and barristers. If Sarah Colemanhad a sufficiently high paid job she wouldhave paid for a nanny and there would havebeen no problem in the first place. The mostimportant practitioners in this field will turnout to be those who will feel that associativediscrimination needs to be pushed as part of the wider social landscape.

Tribunals Associative discrimination is like any legaldevelopment. The effectiveness of a legalright depends on how receptive a judge is toit. Judges will need to act fairly and speedily. If a claimant in Sharon Colemans position wasfaced with a hectoring cross examination,this would have to be stopped by a tribunalchair acting within the Overriding Objective.

General awarenessFrequently somebody who is mentallydisabled will not be aware that they aresubject to acts that are intended to causeinjury and hurt to feelings. People in thecaring professions are potentially veryvulnerable. In many situations, claims will bea last resort. Sarah Coleman had the benefitof good advice at an early stage.

Employers At the end of the day it is employers who willdrive changes in this area. This is a questionof accommodation. Employers will want tostay ahead of the game because they want acompliant workforce. Employers will addressassociative discrimination and orientate theirpolicies appropriately irrespective of whatthe law says.

HOPE SPRINGS ETERNALThe emergence of rights against discriminationfor associates highlights the extent to whichdiscrimination law can be conceptualised as asocial weapon. It will be interesting to see howintersectional and associative discriminationdevelop in terms of the language used beforetribunals. How long will it be before we startthinking of employment law in terms of human rights? It could be argued that humanrights could well encapsulate intersectionaland associative discrimination.

Equality meaningfully understood consistsof human dignity and personal autonomy.One way of undermining the dignity andautonomy of people who belong to a certaingroup is to target not them, but third personswho are closely associated with them and donot themselves belong to the group. A robustconception of equality entails that thesesubtler forms of discrimination should alsobe caught by anti-discrimination legislation.In the words of Sharon Coleman, we are onestep nearer to stopping people with caringresponsibilities like me from being badlytreated and harassed at work. It has takena lot of courage to fight this case, but no-oneshould have to choose between caring fordisabled relatives or their job 12 .

1Coleman v Attridge Law C303/062EC Equal Treatment Framework Directive2000/78 Establishing a framework for equaltreatment in employment and occupation,formally adopted on 27th November 2000.3The purpose of this Directive is to lay downa general framework for combating discrimi-nation on the grounds of religion or belief,disability, age or sexual orientation as regardsemployment and occupation, with a view toputting into effect in the Member States theprinciple of equal treatment.4For the purposes of this Directive, the prin-ciple of equal treatment shall mean that thereshall be no direct or indirect discriminationwhatsoever on any of the grounds referred to in

Article 1.5For the purposes of paragraph 1: (a) directdiscrimination shall be taken to occur whereone person is treated less favourably thananother is, has been or would be treated in acomparable situation, on any of the grounds re-ferred to in Article 1; (b) indirect discriminationshall be taken to occur where an apparentlyneutral provision, criterion or practice wouldput persons having a particular religion orbelief, a particular disability, a particular age,or a particular sexual orientation at a particulardisadvantage compared with other personsunless: (i) that provision, criterion or practiceis objectively justified by a legitimate aim andthe means of achieving that aim are appropri-ate and necessary, or (ii) as regards personswith a particular disability, the employer or anyperson or organisation to whom this Directiveapplies, is obliged, under national legislation,to take appropriate measures in line with theprinciples contained in Article 5 in order toeliminate disadvantages entailed by such provi-sion, criterion or practice.6Carers UK.7www.carersuk.org8 Appendix V: SR 49[2004] IRLR 79910 [1993] 1 SCR 554 at p 64511 Appendix V: JIL 2012 Commission for Equality and Human Rights:Mothers landmark legal victory could heraldnew rights for Britains six million carers.

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18 the barrister

Jackson: a review for reviews sake or avaliant effort?By Bob Gordon , CEO, 1st Class legal

On 8 May the attention of

the legal world turnedto the subject of civillitigation costs as JacksonLJ revealed the terms of

reference of his year-longreview of the matter in his preliminary report.

The subject of reducing litigation costs is

close to most lawyers hearts as it is critical toLondons competitiveness as an internationalcentre for litigation and we all have avested interest in preventing any further

oss of ground to the worlds other centres.Whilst we lead on matters of certainty of law,transparency of process and enforceabilityof our judgments in other jurisdictions, we

cannot say the same when it comes to thematter of cost: on this point our competitorshave some advantage.

So the various strands of the professionmay be united in a keenness to reduceitigation costs, however this does not mean

that everyone has welcomed the idea of LJ

Jacksons review, despite its promise of afundamental re-think of issues dear to theirhearts. Indeed some commentators havegone on record to say that far from needinga new set of rules to help contain costs, what

s far more needed is for the rules that wehave in place already to be followed by thosemanaging and judging cases. Other cynicsclaim the idea of a fresh review is doomed

from the start, as its roots are in the abjectfailure of the Woolf reforms to control the costof civil justice. Immediate reactions from thebig law firms as the 1,000-page preliminary

report was published on 8 May ranged fromOh God! Its so big! (David Green, Chair of

the London Solicitors Litigation Association),to Here we go again another review for

reviews sake (anonymous senior partner)to A valiant effort.. that helpfully articulatesthe issues (Clare Canning, partner inthe Litigation & Disputes team at Mayer

Brown) to The report is neutral in tone andapparently free from political interference.

As a consequencehas the real potential to

deliver (Anthony Hughes, president of theForum of Insurance Lawyers).

One of the main discussion points around

the Jackson Review, particularly within themedia reports surrounding it, and in the

corridors of law firms around the City and inthe regions, as well as at the Bar, concerns

the English Costs Rule - the award of costsagainst an unsuccessful party and whetherit is now time to adopt a different approach.Certainly media reports to date have focused

on LJ Jacksons apparent leaning towards themodernisation of conditional fee agreements.The English Costs Rule certainly has its flaws,but is this alternative that is most often talked

any better? Or to put the question anotherway, could this pave the way for the typeof litigation excesses that commentatorscomplain of in the US, where a mischievous

plaintiff bears virtually no risk of having topay the other side's costs in addition to theirown, and where the existence of ContingencyFee Arrangements means that even if they

lose, their own costs are covered by thearrangement with their lawyers: thus thesemischievous plaintiffs quite literally havenothing to lose by bringing the most spuriousclaims. Inde

barrister magazine issue 41

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