26 Jun 2019

Hale's Resolutions - modified

Readers who have delved into Lord Thomas Bingham's excellent book, "The Rule of Law" would no doubt have been introduced to Sir Matthew Hale in Chapter 2. Hale was noted as a jurist and legal researcher, and his Analysis of the Common Law was influential on Blackstone's Commentaries.

 Bingham (Ch 2 (5)) quoted Hale's Resolutions, a list of 'Things Necessary to be Continually had in Remembrance'. 

Having given some thought to these resolutions, I had in mind that some were too antiquated to stand in a modern world, though they were likely to have been adequate in Hale's time. Resolutions 1 and 3, I reject in their entirety; God has no business in the administration of justice; neither King nor Queen. The Law should stand above all and no man should answer to more than the Rule of Law and his conscience. 

Having these thoughts, and similar, in my mind, I decided to rewrite Hale's list to fit my own thoughts and also to 'modernise' them to fit in with today's world/knowledge. 

1.    That in the pursuit of justice, I am bound by the Rule of Law and my conscience, and in seeking justice I will do so:

2.    With

a.    Forthrightness

b.    Purpose

c.    Tenacity

d.    Regard that the path to justice may not be easy or quick; but

3.    I will be prepared to do right, and my best endeavours will not be withheld for lack of trying; and

4.    I will be passionate about my cause but not a slave to my passions, or fall to them however provoked; and

5.    Focus my attention and energy to the business at hand; and

6.    Never prejudge before the entire matter is done and over with; and

7.   Recognise that bias and paucity of thought are my failures and no one else’s; and

8.    That discretion and compassion and mercy are equally part of justice and law as much as punishment and rehabilitation; and

9.    Law should not give way except and only to conscience and justice; and

10. That the law is supreme except as conscience and justice demands it to bend or fall.
Keeping in mind that I do not administer justice (Hale was a judge) but intend to practice law, resolution 1 is therefore clear in stating 'the pursuit of justice'. Note too, that 'justice' does not imply a "win at all costs" stance on behalf of a client. The aim should be to give your best, but if your client is guilty, then justice should still be administered by those so charged. The Rule of Law and your conscience should be your guide in doing what is right, and your best.
     Bias and paucity of thoughts refer to defects in thinking in yourself, and therefore has no one else to blame . This is where I am a strong believer in critical thinking. While studying law introduces elements of critical thinking, it does not go far enough on its own to really eliminate defective thoughts. Critical thinking is best practiced after studying it as a subject by itself.
     Resolutions 9 and 10 refer to conscience. Note that in this instance the conscience referred to is not my conscience as in Resolution 1, but is a reference to a 'collective' conscience (of society). So what was the law in instances such as permissible marital rape, outlawing homosexuality etc fell to the collective conscience of society through the judges administering what is right. The law as it stood then fell to the changes in society. This is what I mean by conscience.
     Thus, Resolution 1 is a reminder that if a law is unjustifiable (to a client or society), then I consider it a duty to argue for it to be changed or discarded. Resolution 10 then becomes clear in its intention.
      Any thoughts?

21 Jan 2019

Pro Bono – Will you do it?

If I have to be completely honest, I have never actively thought about getting involved in pro bono work. I think, for me at least, it has always been part of my internal ethical character – to help people who find themselves in unfortunate circumstances, mainly in part because of my personal circumstances. I had worked many years in social welfare, as well as doing voluntary work in the community, and assisting several government initiatives (in Trinidad and Tobago) to help those who were not capable of helping themselves.

Since March 2018, I have been volunteering as an adviser in the advice centre at my local community centre. I would like to think that I have made a difference in the lives of the clients who visit seeking assistance. I have had success stories; for example, the single mother living on benefits who bought a cooker which was defective – condemned within a few days of purchase – and the company refused to replace it or refund the money, for nearly one year. Law students will know that this is a breach of the Consumer Rights Act 2015. After I got involved, it was replaced within a couple of weeks. I remember when the client came to say thank you, she literally had tears in her eyes, as she could not afford to buy a new cooker.

I see many people who have been living in atrocious circumstances. Usually, it is the City Council which is most at fault but also private landlords. Many times, repairs are not done in a timely or adequate manner and can cause significant health problems for tenants. Mould and damp are much too common and cause respiratory problems. It is not an exaggeration to say that many of these problems put the health of little children at risk – considerably more so than adults. The problem is so bad that I now have a standard paragraph in my complaint letters:

“The RSPCA would certainly disapprove of an animal living under these conditions! In fact, I dare say that the owner of any animal living in such accommodation would soon be prosecuted in court.”

The fact that Councils try to balance the use of resources against the health and well-being of tenants is certainly not a problem as far as the rights of tenants are concerned – Hotak& Ors v London Borough of Southwark & Anor (Rev 1) [2015] UKSC 30 made that very clear:

“an authority’s duty under Part VII of the 1996 (Housing) Act is not to be influenced or affected by the resources available to the authority. Once they have determined the status of an applicant under Part VII of the 1996 Act, their duty to that applicant is as defined in the Act: the fact that the authority may be very short of money and/or available accommodation cannot in any way affect whether an applicant is in priority need. In so far as a balancing exercise between housing the homeless and conserving local authority resources is appropriate, it has been carried out by Parliament when enacting Part VII.” [Emphasis added].

“Aha!”, you may say, “That only refers to homeless people.”

Well, under the Homelessness Code of Conduct Guidance, “a person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation.” [Emphasis added].

On 2 November 2018 I represented a client in Small Claims Court, pursuant to Section 3(1) of the Lay Representatives (Rights of Audience) Order 1999, and as set out in CPR 27 and PD 27, paras. 3.1 and 3.2.

The client had a leaking roof since 2010. The City Council owned the property then and did not do any effective repairs. In 2016, the client bought the apartment he was living in. It was one apartment, in a building that contained 4 such apartments. The result was that he owned the apartment under a lease for the building, which was still owned by the Council and who was still responsible for repairs to the outside of the apartment where the client lived, including the roof of course.

The leak in the roof continued up to February 2018 this year when the client filed his claim in court, then the Council hastily put down a tar covering on the roof to stop the leak. It wasn’t enough, as by then 8 years of leaks had damaged his apartment to some severity. He was so stressed he had to be medicated and treated for depression and anxiety.

At court, the Council was represented by a barrister, a solicitor and a junior lawyer. Plus, the Council’s witness who was the person responsible for the computer system that logs the repair calls and passes the jobs to the repair contractors. This witness brought in a partial list of the call logs for the past 8 years showing that when the tenant (my client) called to get repairs done, he was not at home when the workers turned up. 13 pages of call logs.

But here is the Council’s mistake. The barrister argued first that the tenant, my client, had a responsibility to call the Council to repair the roof. Well, the very fact that there were 13 pages of call logs was like shooting themselves in the head, right? I couldn’t believe a qualified barrister made such an elementary error.

Second, he argued that the tenant/my client should be home to allow access to the roof. I merely pointed out to the judge that the Council’s own witness said in his witness statement that the roof was accessed at least twice using an elevated electrical platform from outside and that was at times the tenant was not at home. So that was another headshot, right?

The result was that the judge agreed that my client had no duty to inform the Council more than he already did, that he was not needed to access the roof and that the statutory law, as well as his lease, made the Council responsible for the repairs. He was awarded £6000, plus costs.

There are some lessons to learn from the anecdotes I related:

a)   No matter how experienced you are in law, you can make elementary mistakes. In fact, the more experienced you are, the more you have to watch that you do not overlook very basic principles and ideas.

b)   Do not be intimidated by the ‘big names’ opposing you. Prepare your argument well, and you have nothing to fear, or be ashamed of.

c)   The law is not contained only in statute or statutory instruments. There may be guidance orders, case law etc and a well-prepared argument involves spending time on research, even if you do not need it in court or in your arguments. Better be prepared.

d)   Don’t be afraid to assert yourself and your client’s (really your) argument. I can be assertive to the point of being aggressive, as you can see. Experience has taught me that being too polite gets you ignored.

e)   The law is both a shield, to protect your clients, and a sword, to assert their rights. Used appropriately, the battle is half-won.

f)    Mind map everything. I actually presented my case to the judge as a printed mind map.

g)   Clearly state that you are making a “formal complaint” when writing your complaint letter/email. Without the use of the words ‘formal complaint’, a complaint is treated as an informal complaint and there is no requirement to act upon it (advice from the Housing Ombudsman).

h)   Always put complaints in writing. Never by phone calls – but if you do make calls, log the date, time and name of the person taking the complaint.

i)    Keep copies of all your documents. You may need them as evidence if you need to go to court.

j)     Resolving problems take time. Don’t get (too) impatient but follow the policies and complaint procedures and allow the time limits for responses and resolution.

k)   Do not hesitate to escalate your complaints. Remember, the law does not help those who ‘slumber’ on their rights.

There may be other lessons that more experienced lawyers can share. This is a few that I have learnt in my volunteering experience so far.

I hope more people do get into pro bono work.

29 Dec 2018

Thought for the Day

“The law is both a shield, to protect your clients, and a sword, to assert their rights.”

© 2018 OU Law Student

15 Sept 2018

Human Rights – Part 5:

Reminder: What are human rights?

If we go back to Part 2, Shestack (1986) described rights as:

“an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

  • Entitlements

  • Immunities

  • Privileges

  • Powers”

Human rights constrain governments to act in a certain way. The government’s behaviour is moderated to the extent that the government ought not (pay attention to these words) breach your rights without lawful authority. The government is also, to a certain extent, a guardian of rights, in that it has ‘agents’ in place to assist the general public to protect and assert their rights, for example, the police, and the judiciary. Keep in mind though, that the responsibility lies with those whose rights are breached to take action, to assert their rights.

The law, like equity, “aids the vigilant, not those who slumber on their rights”.

Human rights are encapsulated in the Universal Declaration of Human Rights (UDHR) but students should keep in mind that rights vary from place to place, culture to culture. One argument against the UDHR is that it encapsulates the ‘Western’ idea of rights and the issue of rights is further complicated in that every individual has an opinion on this topic.

“These views are influenced by upbringing, culture, religion, friends and family, among other factors. The most difficult aspect of freedom has always been that the concept requires us to recognise that other people have ideas that may not align with our own. This tension is demonstrated by movements underway to try and reframe certain civil rights, such as the right to private life as exercised by members of the lesbian, gay, bisexual and transsexual community, as infringements of religious freedom (Michaelson, 2013). The landscape of rights is continually shifting.”

© The Open University, 2014

Given the above then, now is a good time to remind readers/students that this LLB is about law in England and Wales, and therefore considers all topics as the law is currently applied here.

14 Sept 2018

Thought for the day

Justice and truth are the common ties of society; and therefore even outlaws and robbers, who break with all the world besides, must keep faith and rules of equity amongst themselves; or else they cannot hold together.

(Locke 1690, I.ii.2.)