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Bank error in your favour? Santander may be coming for you

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Santander Bank in Britain has been given the right to identify and pursue by telephone and email the beneficiaries of erroneous payments – even though the thousands of pounds-worth of errors were made as a result of Santander’s own failings.

The High Court has rejected privacy concerns and ruled that Santander can force other banks to reveal the details of mistaken beneficiaries by issuing a “Norwich Pharmacal” order – usually used to reveal fraudsters and other wrongdoers – even though wrongdoing may not have occurred in these cases. 

The unwitting beneficiaries can now have their names, addresses, emails and telephone numbers revealed to Santander which can use them to press customers to repay the money or ultimately take legal action against them. Mr Justice Birss in the High Court Chancery Division has concluded that privacy rights are trumped by property rights. The orders are supposed to be issued only in exceptional cases but Birss has in effect created a rubber-stamping mechanism for issuing the orders whenever banks make errors and cannot trace the beneficiaries.

The case undermines the right to privacy by suggesting that in future there need not be real evidence of wrongdoing (eg fraud or internet piracy) or of a wrongdoer before such orders are issued. They can be issued on the assumption of wrongdoing without an arguable case being put in open court that wrongdoing has occurred.

Hundreds of such transfer errors occur each month and Santander has recently set up a Refunds and Recoveries team to deal with them. Typical errors include duplicate payments, the selection of an incorrect mandate and the insertion of an incorrect account number. In some cases the bank is stymied when trying to get money back from customers of other banks because the beneficiaries – whose names and details are unknown to Santander – are protected by the other banks’ confidentiality.

A Norwich Pharmacal order is made against someone who was “mixed up” in wrongdoing (innocently or otherwise) but who would not  reveal the wrongdoer, perhaps citing administrative rules or confidentiality. Once the “wrongdoer” is identified, money due can then be discovered by “equitable tracing” (TRACING RULES: pdf) – following it into bank accounts and assets to make a claim on it as being held on trust – or other legal action can be taken. 

Applications for the orders have been made in the past to deal with fraud and internet piracy (where the order might be issued against an internet service provider) and in a failed attempt to expose details of torture (Binyam Mohamed). Cases have included Bankers Trust v Shapira [1980] 1 WLR 1274 where a £1m fraud was alleged and an order issued to reveal details of the apparent wrongdoer’s account. On that occasion Waller LJ said: “Clearly it is undesirable that an order such as this should be lightly made.”

Santander has made paper applications for 85 Norwich Pharmacal Orders since it started doing so in 2013 and another 250 are expected this year. However the case before Mr Justice Birss (Santander UK v National Westminster Bank and others [2014] EWHC 2626 (Ch)) was intended as a full open court hearing to establish principles for their use and iron out inconsistencies – and publicly establish that Norwich Pharmacal orders are valid for such minor cases without producing evidence of actual wrongdoing.

The case concerned eight examples of erroneous transfers being made by Santander ranging from £550 to £12,000. The bank argued that, prima facie, it had a right to retrieve the money under the equitable doctrine of unjust enrichment on the basis of mistaken payment. Broadly this means that the money should be returned because a reasonable person aware of the mistake would accept s/he had no right to it. A court would use its equitable jurisdiction to put the matter right not least since “It is not obvious what the beneficiary’s defence would be.” (Birss, para 40)

Famously there is a “change of position” defence if the beneficiary was unaware of the error and spent the money – on consumables rather than on items such as jewellery or investments that retain value. However, it was for the beneficiary to make such defences once legal action is instituted, said Birss. He said:

“Although the evidence does not establish with certainty that the beneficiary bank [ie bank of the customer who received the money in error] has in every case actually informed the beneficiary himself or herself, it is a reasonable inference that that has happened and so it is a reasonable inference that the beneficiary has neglected or refused to repay the money or otherwise engage with the matter.”

Furthermore “the beneficiary bank clearly knows or should know the identity of the beneficiary and is mixed up in the unjust enrichment sufficiently to justify an order. After all the money was paid into an account at the beneficiary bank”.

For good measure Birss threw in property rights under the European Convention on Human Rights Article 1 Protocol 1 balanced against rights to privacy. He considered that providing Santander with the name, address, telephone number and email address of the beneficiary was proportionate subject to Santander’s “limited right to use it”. The order is limited to the name(s) of the holder of the account into which the money was paid. Dates of birth will not be provided and: “The claimant’s right to use the information provided is limited to the purpose explain in the application. It can be used to further the claim to recover the money paid by mistake but for no other reason.”

Birss concluded: “The Norwich Pharmacal jurisdiction is a useful and important remedy available from the court to enable justice to be done. It is potentially intrusive and the balancing of the parties’ rights and interests is not always straightforward. In the eight live applications before me, Santander has a proper claim to disclosure from the beneficiary banks of the identities of the beneficiaries of the mistaken payments.”

Comment
Although this case seems to be a sort of tidying up exercise, justifying practice that had already occurred, albeit in paper cases handled by lesser judicial figures such as Chancery masters, it has nevertheless extended what was conceived as a “strong order” used in limited and serious circumstances to rather minor issues. Not least it allows Santander and other banks seeking the order to put right the results of their own incompetence or accidental error.

Birss J has not required any evidence of wrongdoing in these cases, such as beneficiaries of mistakes wilfully holding on to money they know is not theirs. Instead he has said “it is a reasonable inference” that the beneficiary knows the situation and “a reasonable inference” that they are refusing payment (Birss, para 28).

This “reasonable inference” will act as a template for all such cases because there is no one to rebut it. The recipients of mistaken payments who, in some cases may not even have noticed them, will be condemned in absentia as wrongdoers in order to facilitate the clearing up of banks’ failings. There is no one to speak on their behalf because the respondents in these cases are other banks who pay lip-service to confidentiality but in reality have no reason to resist Norwich Pharmacal orders. Indeed, they will benefit when they send out mistaken payments themselves. “In these cases the beneficiary bank does not consent but does not oppose the applications and so the application is unlikely to be contested,” as Birss noted.

It is not clear from the case whether Santander is a particularly egregious offender when it comes to making mistaken transfers. Its lawyer gave this example: “May 2014 Santander sent 8.5 million Faster Payment transfers and there were 603 Santander errors relating to those payments in the same period.” A proportionately tiny number and not all those 603 will require Norwich Pharmacal orders (in some cases the bank already knows where the money went).

Nevertheless the idea that hard-pressed Chancery masters and judges are busying themselves day in and day out helping to put right bank errors is worrying. This is the process explained in court:

“If the details are not provided [by the "beneficiary bank"] then Santander can either write off the loss or take some other step to identify the beneficiary. Santander’s policy is that if the loss is less than a certain sum (which they regard as confidential) it will be written off but values more than that are transferred to the bank’s solicitors to progress an application for a Norwich Pharmacal order. Santander do not approach the court unless it has no other way of contacting the beneficiary. Santander’s external solicitors contact the beneficiary bank. The beneficiary bank generally adopts the position that it does not consent to nor does it oppose the making of a Norwich Pharmacal order. An application for a Norwich Pharmacal order is made to the court. If it is granted it is then served on the beneficiary bank, which then complies with the order and reveals the identity of the beneficiary. The beneficiary bank also confirms its costs of complying with the order, which are paid by Santander.”

In other words the result of the orders is a foregone conclusion. The beneficiary’s banks are adopting attitudes – that they respect confidentiality – but in reality couldn’t care less whether they hand over the details. The law courts are resorted to in order to make them do what they want to do anyway but with legal protection. From this case we can see that Santander finds the Norwich Pharmacal option worthwhile to retrieve sums as low as £550. Birss has set the bar rather low for the banks, put the state’s courts at their service for relatively small sums and hence allowed them to avoid the costs of their errors. That means they have less of an incentive to sort out their systems in the first place. 

The Norwich Pharmacal order cases have hitherto given serious consideration to the proportionality of issuing the orders as against confidentiality/privacy and concluded, for example, that “an arguable case on the ground of breach of contract and trespass” must be shown (Viagogo). Santander has shifted the standard of proof quite significantly – basically to no standard of proof at all, merely the “inference” that someone with extra money in their account must have been told they have it and must be retaining it wrongfully. An inference is not even a “reasonable suspicion” (see Macdoel Investments) or a “good arguable case” (Binyam Mohamed), never mind a prima facie case. This cannot be right – but given claimant and respondent both have the same interests, there is no one to argue this important point of legal principle.

Twitter: alrich0660

Thanks, as ever, to Bailii.Org for case materials

Materials
Lord Reid in Norwich Pharmacal: “But that does not mean, as the Appellants contend, that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. Or a person might know that a particular person is in possession of a libellous letter which he has good reason to believe defames him but the author of which he cannot discover. I am satisfied that it would not be proper in either case to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that.

“So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who las no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the Respondents are in an intermediate position. Their conduct was entirely innocent; it was in extecution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?” (Para 9 and 10)

Lord Cross of Chelsea: In the course of the argument fears were exposed that to order disclosure of names in circumstances such as exist in this case might be the ” thin end of the wedge “, that we might be opening the door to ” fishing requests ” by would-be plaintiffs who want to collect evidence or to requests for names made to persons who had no relevant connection with the person to be sued or with the events giving rise to the alleged cause of action but just happened to know the name. I think that these fears are groundless. In the first place, there is a clear distinction between simply asking for the name of a person whom you wish to make a defendant and asking for evidence. This case has nothing to do with the collection of evidence.

Secondly, although in any case which was on all fours with this case or any subsequent case which may be decided the Commissioners or any other person who was asked for a name would no doubt give it without putting the applicant to the expense of obtaining an order of the Court; in any case in which there was the least doubt as to whether disclosure should be made the person to whom the request was made would be fully justified in saying that he would only make it under an order of the Court. Then the Court would have to decide whether in all the circumstances it was right to make an order. In so deciding it would no doubt consider such matters as the strength of the applicant’s case against the unknown alleged wrongdoer, the relation subsisting between the alleged wrongdoer and the respondent, whether the information could be obtained from another source, and whether the giving of the information would put the respondent to trouble which could not be compensated by the payment of all expenses by the applicant. The full costs of the respondent of the application and any expense incurred in providing the information would have to be borne by the applicant.” (Para 100)

Lord Kilbrandon: “The most attractive way to state an acceptable principle, intellectually at least, may be as follows. The dispute between the plaintiff and the defendants is of a peculiar character. The plaintiff is demanding what he conceives to be his right, but that right in so far as it has patrimonial substance is not truly opposed to any interest of the defendants ; he is demanding access to a court of law, in order that he may establish that third parties are unlawfully causing him damage. If he is successful, the defendants will not be the losers, except in so far as they may have been put to a little clerical trouble. If it be objected that their disclosures under pressure may discourage future customers, the answer is that they should be having no business with wrongdoers. Nor is their position easily distinguishable from that of the recipient of a sub-poena, which, in total disregard of his probable loss of time and money, forces him to attend the court for the very same purpose as that for which discovery is ordered, namely, to assist a private citizen to justify a claim in law. The policy of the administration of justice demands this service from him.” (Para 110)

Norwich Pharmacal Company & Others v Customs And Excise [1973] UKHL

See also: Golden Eye (International) Ltd & Ors v Telefónica UK Ltd & Anor [2012] EWCA Civ 1740

Rugby Football Union v Viagogo [2012] UKSC 55   

Macdoel investments v Federal Government of Brazil  [2007] JCA 069 CA  

Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs  
Here Mohamed failed to get an order against the UK Government to support disclosure in a “good arguable case” that he had been tortured by the United States (with the suggestion that the UK was “mixed up” in the torture though not the perpetrator). So the Norwich Pharmacal order protects banks from their blunders when there is no evidence that crime has occurred but does not assist alleged torture victims.

 

 


 

Ministry of Justice’s 2½-year legal wrangle over ‘bullying’ Court of Appeal Master

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The UK Ministry of Justice has been caught up in a two and a half year legal wrangle with senior Court of Appeal lawyer accused of bullying conduct.

Robert Hendy, a Master in the Civil Appeals office, has been suspended on full pay in excess of £65,000 since December 2011 when two female lawyers made complaints about him. His conduct was said to be bullying and undermining of colleagues. Hendy denies all the allegations against him.

His dispute about disciplinary procedures reached the High Court this week where Mr Justice Mann said: “There were also allegations of casual racism, alcohol misuse, absenteeism and neglect of his official duties, both managerial and substantial” – though these have since been dropped.

The High Court had heard that after compiling a 70-page report on the matter, an investigations officer appointed under the MoJ disciplinary procedure, Stephen McAllister, concluded there was enough evidence to prove the bullying and harassment allegations against Hendy and that they should be considered serious and that specific allegations of bullying particular people should be regarded as gross misconduct. He made comments about his power to sack people and “He [McAllister] found that Mr Hendy made a number of sexual innuendo remarks over time, meant in jest but having an adverse effect on the recipient.”

A racism claim was rejected and there was “no clear evidence to link the use of alcohol in the workplace and the performance of his official duties” and no case to answer on performance issues. The court heard that Hendy complained about these allegations ever having been brought up and said of all the complaints that they were trumped up and were effectively the result of a conspiracy between the two complainants.

A finding of gross misconduct was made against him in March 2013 and he was sent a letter summarily dismissing him but an appeal manager, Philip Copple, overturned the decision to sack him on the grounds that his defence had not been tested by putting his version of events to the complainants. He noted:

“I do not suggest it is necessary to shuttle back and forth repeatedly between the witnesses, putting any new fragment of evidence or nuance that emerges from one witness to all the others, before it is safe to draw a conclusion. But I do contend that in a case of potential gross misconduct, a sufficiency of enquiry does require that at some point in the disciplinary process, whether during an investigation or a hearing, that the alternative account of disputed events and other submissions of the person under investigation, which s/he claims are indicative of dishonesty in others, are put to those other witnesses to elicit and assess their responses. This did not happen in this case.”

He suggested that Hendy be allowed to put questions to the witnesses/complainants. Hendy was reinstated, though he remained suspended. A new investigating officer and determining officer were appointed to proceed with the disciplinary case. Hendy claimed the new process would be a rubberstamping of the earlier decision and hence sought a high court injunction to halt proceedings until a fresh investigation by an independent person agreed by both parties. However, Mr Justice Mann rejected Hendy’s application.

Hendy’s case and the law
Hendy’s claim is that the MoJ disciplinary procedure is contractual and hence should be adhered to. Hendy says his means there are “implied terms of the contract that the defendant [MoJ] should not conduct itself in a manner likely to destroy or damage the employment relationship”, operate the procedure fairly and transparently and according to the requirements of mutual trust and confidence implied into every contract of employment. In particular Hendy’s case should have been put to the complainants as suggested by the appeal manager, Copple. Copple’s recommendation had in effect become a contractual right in favour of Hendy (ie since not to follow his recommendation would breach the implied term of mutual trust and the obligation of good faith).

The MoJ denied that the procedure was part of Hendy’s contract of employment though it accepted there was an implied obligation to operate a fair process.

The law on whether disciplinary procedures are contractual is vexed. Procedures are not necessarily written into contracts but “the fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee” (Alexander v Standard Telephones & Cables Ltd (No 2), [1991] IRLR 286, 292-3. This was a case in which a union “last in, first out” redundancy agreement was held not to have been incorporated into workers’ contracts of employment.

The MoJ procedures stated explicitly: “This policy does not form part of your contract of employment. However, you are bound by the provisions of this policy which may be amended from time to time.” That the employee is “bound” by the procedure suggests a contract but Mann said: “Looking at the document as a whole I do not consider that the terms of the policy itself have a contractual effect binding the employer to carry out particular acts under it.” Only the employee is “bound”, suggesting no bilateral obligation – and s/he is “bound” to do very little other than accept categories of misconduct. Acceptance of good faith and fairness “does not require the incorporation of terms into some sort of contract”.

Mann rejected the point about Copple’s recommendation becoming contractual but considered there was an arguable view that they should be followed because of the duty of fairness. However:

“It is not, in my view, arguable that each and every part of Mr Hendy’s case, including his reasoning on credibility, needs to be put to each and every relevant witness. It is not a mechanical process. What needs to be put is enough to enable a reasonable view to be reached. What qualifies for this purpose will be a matter for the reasonable judgment of the investigator, and then for the determining officer who has to consider what steps to take on the investigator’s report.”

In fact Mann considered the new investigating officer had made great efforts to do this though one complainant had been too upset to read new material from Hendy and seven matters were not put to the complainants. But “what was required was that he should do enough to be able to test the complainants’ credibility”. Mann concluded the investigating officer’s “procedures were sufficiently fair to prevent there being an arguable breach of contract in that respect”.

Hendy had failed to establish there was unfairness of sufficient seriousness to justify halting the whole proceedings. An outcome that might be the result of and unfair procedure could be challenged later at tribunal and damages sought. Injuncting the procedure would leave Hendy suspended on full salary for a further considerable time – money he would not be able to repay if he lost his disciplinary case. Such a financial loss to the MoJ should be weighed in the balance when considering injunction. Hendy’s application for injunction therefore failed.

Twitter: alrich0660

Note: The case of Hendy v Ministry of Justice is here.

The Civil Appeals office 
The Office supports the Court in making the best use of the judicial resource. To that end: It verifies whether this Court has jurisdiction; It ensures that all the papers necessary for determining the case are available and in good order; It ensures that there is compliance with all procedural steps; It manages the progress of each case from setting down to disposal; The Office draws up the constitutions of the Court, and under the Direction of the Master of the Rolls supervises the allocation of cases to those constitutions; The Office ensures that orders reflecting the decisions of the Court are properly drawn; and The Office provides assistance to the legal profession and to individual litigants.

The Civil Procedure Rules, Part 52.16 (2), provide that the Master and the Deputy Masters may exercise the jurisdiction of the Court insofar as it relates to: any matter incidental to any proceedings in the Court of Appeal; any other matter where there is no substantial dispute between the parties; and the dismissal of an appeal or application where a party has failed to comply with any order, rule or practice direction. In practice most of this business is handled on paper, although there are weekly ‘dismissal lists’ taken in open court by the Master or by the Deputies. Those orders are reviewable by the Court. Justice.gov.uk

 

 

 

 

 

 

 


 

 

 

 

 

 

Court wrangle for Drax over renewable energy subsidy

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Note: since this piece was posted DECC has won its appeal against Drax (7 August 2014) and the power generator has abandoned further legal action (with its share price duly dropping). See “The Court of Appeal judgment” below.

Shares in UK energy company Drax leapt more than 40p after it won a High Court victory against the Department of Energy  and Climate Change (DECC) over renewable energy subsidies (14 July 2014). It is the second court win against DECC mishandling of the green energy business sector announced within days. (See previous post)

DECC had failed to accept one of Drax’s biomass conversion projects as eligible for a subsidy scheme involving contracts for difference (CfDs), intended to provide certainty on prices for renewable generation.

Mrs Justice Andrews ruled that: “When properly understood, Drax’s application did satisfy the Key Criterion [for the CfD subsidy] and no decision maker, properly informed, who accepted that Drax was telling the truth …  could have concluded that it had failed to do so or that the information given by Drax was insufficient to satisfy him that it passed the test.” She added: “The matter will have to be remitted to DECC for reconsideration in the light of this judgment.”

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Contractual rights are property rights: Government blunder on feed-in tariffs

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The UK Government faces a bill for up to £200m in compensation to green energy installers that suffered losses as a result of former energy secretary Chris Huhne’s 2011 announcement on proposed cuts in environmental subsidies. The announcement led to many organisations and individuals dropping plans to install solar power with feed-in tariff (FIT) equipment that feeds electricity generated by small-scale solar panel systems into the grid, producing a payment.

A legal ruling in the High Court (Breyer Group plc & Others v DECC issued 9 July 2014 ) is the second time in a week that the government has been show to have fallen foul of the principle that the law should not be retrospectively changed if it damages people’s interests. (See the Poundland case: UK Human Rights Blog)

Are contracts property?
The High Court established in its ruling on preliminary legal issues that pre-existing contracts to supply the solar micro-generation equipment constitute “property” for the purposes of protection of property rights under the European Convention on Human Rights. Furthermore, Huhne’s announcement, which proposed bringing forward a reduction of the subsidised payment, constituted an “interference” with those property rights. This should potentially be compensated, said Mr Justice Coulson.

The 31 October 2011 announcement that cuts in the feed-in payment might be brought forward amounted to a retrospective change in legislation without passing new legislation through Parliament. “The proposal would have taken away existing entitlements without statutory authority.” The announcement damaged businesses and hit consumers who had planned to install the equipment on the basis of the higher payments. As such it breached ECHR Article 1 Protocol 1 (A1P1) on protection of property rights regarding contracts concluded on or before the day of the announcement.

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Mass surveillance in the UK: Charles Farr’s flawed arguments

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Hang on! Just because UK government security official Charles Farr says GCHQ et al have done nothing unlawful in their mass digital surveillance, that’s no reason to believe him. You wouldn’t believe a burglar rifling through your drawers; why believe the spokesmen for the people rifling through your personal emails and internet searches?

Farr has put in a defence in the case brought by Privacy International against the Government, not a statement of the law, yet it is being treating as gospel truth. In particular people are demanding the law be changed – conceding that the surveillance is currently lawful (among them pro-security services types such as Lady Neville-Jones).

In fact a judge has not ruled in the case yet, and there are fundamental flaws in Farr’s argument that UK-originated digital material on overseas servers is fair game even though it originated in or returned to the “British Islands” (in the quaint formulation of the 2000 Regulation of Investigatory Powers Act).

For starters it is strongly arguable in law that nothing in the Act can sanction unreasonable mass surveillance – since that was not the purpose of the Act. RIPA was intended to enact a European Directive banning such downloading and storing of personal material and a judge will interpret it in that light. He or she is likely to take a dim view of any alleged “loopholes” in it. (This argument is made briefly below and at length here.)

But Farr’s case is further flawed – not least by a disingenuous attempt to claim parliamentary sanction for mass surveillance on the basis of an arcane exchange in the House of Lords one July evening in the year 2000.

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Squatting, adverse possession and the LASPO s.144 debacle

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Ancient Roman law gives illegal squatter £400,000 home. Or so you would think from the coverage of builder Keith Best’s Land Registry claim to have 35 Church Road, Newbury Park, Ilford, registered in his name.

The importance of the case is (or will be when it goes through appeals) that it should clarify how far the criminalisation of squatting (LASPO S.144) impacts on the law of adverse possession.

It’s a knotty problem. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 rendered squatting illegal if the occupier “is in a residential building as a trespasser having entered it as a trespasser”. The Act is in a sense retrospective. You fall within it even if you entered the premises before the Act was passed – in Best’s case around 2000.

Best unfortunately staked his adverse posession claim after the Act came into force so the Land Registry rejected it on the grounds he was an illegal trespasser according to the meaning of Section 144. Adverse possession, far from being a Roman law, is covered by Schedule 6 to the Land Registration Act 2002 which says: “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.” A further two years is allowed while the registrar contacts the registered owner (“the proprietor of the estate to which the application relates,“) plus others with a potential interest to see if they object to the transfer to a new owner.

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Paul Weller’s children: another brick in the wall of privacy law

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The judgment in the privacy case of three of pop singer Paul Weller’s children (Weller v Associated Newspapers has caused a little confusion – not least among some of the press who might be expected to need to understand it best.

 

Mr Justice Dingemans has perhaps added another small brick in the developing English law of privacy – clarifying when pictures of stars can and cannot be published when they are going about their private lives. Here’s a brief rundown.

 

There is no tort of invasion of privacy in England. You can, in general, take pictures of whomever you want so long as you aren’t invading property rights to do so. Nor, broadly speaking, are their specific rights to those images belonging to the people who feature in them.

 

However, Dingemans notes: “After the enactment of the Human Rights Act 1998, claims for misuse of private information were absorbed into the established claim for breach confidence; see A v B plc [2002] EWCA Civ 337 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3) [2005] EWCA Civ 595 Lord Phillips said “we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion”. (Para 20)

 

In other words a privacy law is being bit by bit put together by the courts from the old Common Law of confidence (ie misuse of confidential information) and the European Convention on Human Rights – balancing Article 8 (right to family life) with Article 10 (freedom of expression including right to publish photographs of people).

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Nigel Evans legal fees: thank the Tories we don’t have to pay

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Friends of Nigel Evans, the British House of Commons deputy speaker cleared of nine sexual offences, have complained that he has been financially wiped out by £130,000 of defence costs in the court case. And wags of a legal disposition have pointed out that he has only his own Tory-led Government to blame.

Conservative MP for Northampton South Brian Binley,  a friend and flatmate of Evans, and Tory Bob Stewart have both pointed out Evans must pay his defence costs even though he was acquitted of all charges – and the Crown Prosecution Service criticised for pursuing them. And Evans himself now says the state should pay. But none of them has made the link with Section 16A of the Prosecution of Offences Act, added by amendment to the act by the notorious Legal Aid Act (LASPO) in 2012.

This stops defence costs being awarded for those not legally aided except under limited circumstances. Costs can be awarded: Read the rest of this entry

Lord Rennard: Women should beware of slapping Old Goats

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Following the allegations of inappropriate sexual behaviour against the Liberal Democrats’ former chief executive Lord Rennard, some dangerous advice has been going the rounds. Basically women are told: if your chief executive touches you and you don’t like it – just slap him. Or throw drink in his face. Or give him a Chinese burn. This is the advice from Sarah Vine, Daily Mail columnist – and it is wrong. Slapping a chief executive is both a criminal and a sacking offence.

Now we must be careful. Lord Rennard has insisted no inappropriate conduct has taken place on his part. So for illustrative purposes we are going to assume that at some time, somewhere some chief executive or another has inappropriately touched a woman’s knee, rubbed another woman’s leg or put his hands down another couple of women’s backs “and places where they had absolutely no business being. We shall call our fictional chief executive “the Old Goat”.

The idea of slapping such a man seems to be based on a fanciful 1950s notion of morality. Our male lead (rather handsome with jutting jaw – so different from our own oleaginous, balding fifty-something fictional chief executive) gets a little fresh with our rather prim heroine. She delivers the slap; it knocks sense into him; he admires her feisty qualities; lust turns to love. There are flowers, a dinner date, a proposal of marriage.

None of those outcomes in reality is likely to occur – nor are they likely to be desired by the victim of our Old Goat’s attentions. The danger of resorting to violence is that it prompts only violence, and Sarah Vine is asking women who have been wronged in this way (touching people without consent and a sexual motive is a sexual assault: see Section 3 of the Sexual Offences Act 2003) to expose themselves to increased violence.

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Lib Dems could – and should – have put Rennard through disciplinary procedure

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Note: Since this post the Liberal Democrats have gone through all manner of wrangling to ultimately drop the minor disciplinary case against Lord Rennard of bringing the party into disrepute. Tim Farron, party president, has said lessons have been learned and the party had worked hard to “fundamentally change the way our party treats these matters” (Guardian 20 August 2014)

Liberal Democrat leader Nick Clegg has apologised and said his party “did not respond in the right way” to the allegations of inappropriate sexual behaviour against the party’s former chief executive Chris Rennard. Nick Clegg might be well advised to say nothing more. It is possible that the Lib Dems could be on the hook for this debacle – with the matter being bloodily and expensively fought out in court.

If the Lib Dems want to feel a particular chill running down their spine they might look at the recent Supreme Court De La Salle case (The Catholic Child Welfare Society and others [2012] UKSC 56 Judgment (PDF) ) where vicarious liability for sex abuse was extended to a Catholic organisation, the Brothers of the Christian Schools, who supplied the head and other teachers to an approved school.

The organisation was deemed liable even though it did not employ those teachers – they were members, not employees, of the Brothers. The principle established was that liability for members’ actions may extend to an unincorporated society. Rennard is a member (not employee) of the Lib Dems and a political party is an unincorporated society, arguably with “corporate features, including a hierarchy of authority” as described in the De La Salle case. The position is further explained below, but some legal background is useful first.

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