Monday, 28 February 2011

Dear People with your fcuking gossip mags in the gym




Friday, 25 February 2011

On Freedom

Obviously, I'd like people not to be offended, but if they are I'm not going to waste any time worrying about it. Ultimately, I don't care if you're offended

Cerrie Burnell - Cbeebies - Children's Television show Presenter

Is there a new Tort a brewing?

(Stick with me, it’s a slow burner, if you can’t be bothered hit ctrl F and skip to Lord Justice Rix.)

In 1916, in the New York Court of Appeal Judge Benjamin Cardozo made good law from bad reasoning.

The background to the matter is thus. Mr Donald MacPherson, a stonecutter, was injured when one of the wooden wheels of his 1910 Buick Runabout collapsed. The defendant, Buick Motor Company, had manufactured the vehicle, but not the wheel, which had been manufactured by another party and installed by defendant. It was conceded that the defective wheel could have been discovered upon inspection. The defendant denied liability because the plaintiff had purchased the automobile from a dealer, not directly from the defendant.

The perfectly logical argument from Buick was that there was no privity of contract between the Claimant and Defendant and thus the Defendant owed no duty to the Claimant. The Claimant’s action lay against the seller of the motor vehicle and the terms of the contract on which he purchased it. It would then be for the seller to sue Buick and Buick to sue the wheel manufacturer. Of course at the time, one of rapid industrialisation of America and the early days of motor vehicles, contracts did not tend to include a warrant as to the satisfactory quality of goods purchased.

Essentially what MacPherson was trying to do was extend the duty of care owed by a manufacturer in tort to the eventual purchaser rather than the immediate purchaser/distributor. Until this point an end user was too remote to be in the contemplation of the manufacturer.

Cardozo realised the landscape had changed from a fairly simple agrarian society sort of thing with goods being made by the local blacksmith to one where mass produced, cheap, death trap, prototype cars were being punted to ill advised consumers. He therefore mashed contract and Tort together to get the result he wanted and gave the leading judgment thus.

“If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we need to go for the decision of this case . . . . If he is negligent, where danger is to be foreseen, a liability will follow”
Which extends the common law duty of care that a manufacturer owes to the end user and started the log slog to the formal development of Product Liability.

Now I say this, not to show that beneath my crass shouty exterior I did show up to the odd lecture at law school but rather because in the UK, at the shiny shiny new Supreme Court (formerly the House of Lords) there is currently waiting to be heard the Employers Liability Trigger litigation appeal.

This in itself takes a bit of explaining but briefly. The history of construction and manufacture, at least in the UK is one of “dunno what that stuff is but since nobody has immediately dropped death it can’t be bad”. Thus we have reams of judical comment relating to dermatitis, blindness, industrial deafness, limbs missing, extra limbs growing and asbestos related disasters. We have so many asbestos related disasters that we now have judges talking about Mesothelioma Jurisprudence!

The Employer’s Liability (EL) trigger litigation concerns mesothelioma. Broadly we have a body of claimants who were heavily exposed to asbestos in the 50s and 60s. Asbestos is naturally occurring and, good news to the reader, you’ve got some in your lungs as it is present in low level air currents. Fortunately your body fights it and you don’t tend to develop a huge malignant tumor and die. If heavily exposed to certain types however your body’s defences will eventually be overwhelmed and you die a horrible and gruesome cancerous death.

Thus it is with mesothelioma it’s about 25 years from exposure to symptoms manifesting and of that the last 5 or 10 years is where the body pretty much gives up and a tumor starts forming.

Historically, with the various firms of the 50s and 60s that let exposure happen having gone pop long ago, insurers would have to step in and would broadly accept that if an exposure took place during their policy period then they would shell out.

Eventually however, as the medical knowledge and opinion on mesothelioma became more sophisticated some insurers (I say insurers, evil lawyers like me who get paid to stop dying pensioners getting any money) began to consider whether, with the long gestation period there was in fact any injury arising during the policy period at all.

Eventually an insurer broke from the pack and ran a case (Bolton v MMI) arguing that, yes it was obliged to indemnify Bolton Council if someone was injured during it’s period of cover but the claims for mesothelioma fell outside of the policy cover so, sadly they would not be covering. MMI lost but the basis for this was the interpretation of policy wordings and whether ‘sustained’ injury and ‘caused’ injury were the same thing and if they were the same thing when did these triggers happen. MMI had “caused” in it’s public liability policies but had ‘sustained’ (which would avoid it having to pay out) in its Employer’s liability policies.

Insurers jumped on this in subsequent cases and started to decline cover. And there is possibly the bitterest litigation ever fought between Zurich and MMI which is broadly just Zurich calling MMI a dick for a few years.

There then erupted a full scale battle royale test litigation between a group of insurers declining cover and a group of claimants/local authorities/other insurers, that we are calling the trigger litigation and which involved a depressingly detailed investigation of the policy wordings focusing really on what ‘sustained’ and ‘contracted’ which were used interchangeably by insurers in their policies meant. The result being that insurers with policy wordings of ‘sustained’ would avoid their policy being triggered.

This potentially creates huge black holes in cover and while the reasoning has been broadly confirmed by the Court of Appeal Lord Justice Rix has left open the possibility of a new Tort coming into being one where there is a liability arising for increasing the risk of an injury/cancer/etc occurring when an exposure has been made.

(right, so I’ve chopped this down a lot and tried to compress but I would recommend that anyone who can should have a look at this and keep an eye out for how the Supreme Court jumps in 2012)

Thursday, 24 February 2011

On Freedom

The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.

 Albert Camus

Monday, 14 February 2011

Tits are awesome

Lateral partner hiring doesn’t work

The Lawyer is running a feature here on the reality of lateral partner moves in London. The gist is that it is often a waste of time.

Almost half of lateral partner hires in London leave the firm they join within five years, and up to a third leave after three, exclusive research reveals.

The research not only highlights the instability inherent in the London recruitment market, but also flags up the different hiring patterns - and success rates - of UK and US firms.

The startling statistics show that a significantly higher proportion of the partners that US firms hire for the core areas of ­corporate and finance leave shortly afterwards.

Twenty eight per cent of all moves were at US firms over the five-year period, with considerably more departures in finance and corporate than at their UK rivals. In finance, 30 per cent of the partners hired in 2005 by UK firms had left by the end of 2010. In US firms the corresponding ­figure was 45 per cent.

US firms lost 42 per cent of their 2007 corporate hires by the end of 2010 compared with 29 per cent for UK firms.

The research, by Motive Legal Consulting, is based on 1,944 partner moves that took place between 1 September 2005 and 31 July 2010.

Friday, 11 February 2011

The Register Explains how Evil Grain Hording Bastards are not actually to blame for anything other than people being able to eat next week

Excellent piece from El Reg, well worth reading if you are a thicky Wonk or UN Food Person.

Medieval merchants were wheat-hoarding bastards

This is exactly the argument that Adam Smith put forward to explain the activities of a wheat merchant (Wealth of Nations, Book IV, Chapter V, start at para 40, here, for a decent dose of 18th century prose). When wheat is plentiful (although he calls it corn – the English did not call maize corn until some time later), say after a harvest, the merchant buys it up and stores it. He then waits until prices have risen before he sells it. If his expected shortage in the future doesn't arrive then he's shit out of luck and loses money. If it does, then the happy populace now have wheat to eat. For, and here's the crucial point: what our merchant, our speculator, has done is move prices through time.

If we all ate wheat like it was that bounteous time just after harvest all the time then we would run out of wheat entirely before the next harvest. Prices would, at that point, become really rather high. However, by buying in the time of plenty, he's raised prices in that time of plenty: thus making everyone consume a little less in that Harvest Festival gluttony. He's also lowered prices in the Hungry Time (in medieval times, the six weeks before the harvest was indeed known as this, it was the worst time of year for food supplies) because he has at least some grain available rather than none.

So we've reduced price volatility, stretched the available supply over more time, possibly even stopped some starvation, by someone being enough of a bastard to speculate on food prices.

Now note, this is physical speculation, actual purchase, taking delivery and storage.

Derivatives speculation, using futures and options, has less effect on prices. It gives us information about what people think prices might be in the future, for sure, but it will only affect today's prices if high future prices lead to that actual physical storage and hoarding. Which could happen, to be sure, but won't necessarily.

All of this leads us to what people like M Sarkozy are trying to say and what the WDM are screaming about. The latter, in their report linked above, come right out and say that as more people are playing with food derivatives, this is what has been pushing up food prices. This is nonsensical, in the absence of any physical hoarding. For a start, WDM seems not to realise than a futures market is zero sum: for any profit made by someone then someone else must have made an equal and opposite loss. For everyone going long (betting on a price rise) someone else must have made an equal and opposite bet going short (betting that prices will fall). That's just how these markets are. It really doesn't matter to spot (current) prices whether three people are betting £50 or 30,000 are betting $50bn: there will be an equal and opposite number of people long as there are short, by definition.

So it absolutely cannot be that “more people speculating increases food prices”.

WDM's second point is that more speculation means more volatility in prices: something that almost all economists would regard with a very jaundiced eye. For the general assumption is that futures act upon prices as does Smith's wheat merchant: they reduce price volatility. Fortunately, the WDM, in its own report, provide us with an example of this. In the 2006/8 price rises, it notes that there's a deep and liquid speculative market for wheat and corn (maize), while there's only a very thin one for rice. And yet it was rice that was vastly more volatile in price in this period: despite the fact that it was wheat and maize which people were turning into ethanol for cars (the true cause of the price rises) rather than rice.

Speculative markets reduce price volatility, rather than increase it.

By Tim Worstall

Wednesday, 9 February 2011

Blatantly stolen from What About Clients : Michelle Golden: Why Specialization Fails

Tits are awesome

Party Funding is Important

The FT is reporting that the (fairly) incumbent Government Tory party has received funding to the tune of £11.4 million (or about 50% of its funding) in the first 9 months of 2010 from the big Financial institutions of the ‘City’ of London. The City being the bit with banks and lawyers and various other nefarious outfits shunned by the uppity general public.

Now it is quite easy to shrug your shoulders and say “so what, better they get cash from anywhere that isn’t the public purse” but there is some danger of a Party being bought by a section of the Economy.

Take the last government. For an example of how easy it is to buy a government one need only consider the long running legal battle in the case of Barker v Corus. You may recall some time ago that Corus was actually the nationalised “British Steel” thus HMG bankrolled in the case.

The Claimant(s) had contracted Mesothelioma from exposure to asbestos while employed. To complicate matter Mesothelioma takes 25-50 years to manifest so it was impossible when dealing with various heavy industrial workers who would have moved around a clutch of employers as long ago as the 1950s to point to a single employer who caused (or allowed) the injury to arise. Thus in previous cases the principle established was one of joint and several liability, essentially that the injured worked could whoever he could find that he had worked for.

The Barker was bitter fought to the House of Lords by HMG (spending something in the region £3 million to make sure dock workers died horribly and penniless) and reversed this joint and several approach to bring in a new concept of proportionate liability thus saving British Steel, various insurance companies, the Government, Local Authorities and the like a fair old whack.

Having thus fought the matter to the conclusion it wanted the Government, made of the Labour Party promptly found its main source of funds to be, entirely predictably, furious and so, having pissed £3 million up the wall to change the law promptly brought in the Compensation Act 2006 to reverse the decision back to the pre Barker position.

The Democratically elected UK Government changed its mind because the Party in power’s bankroller rattled the purse strings. So yes, no danger of the same happening with the Tories, what was that about curbing bonuses?

Tuesday, 8 February 2011

I am so sick of being told how to live my life

Apparently Ian Duncan Smith intends to state today that a married life is the best antidote to the celebrity self-obsessed culture we live in (according to

I am not married, I have lived with my girlfriend for about 10 years and being that I worked (okay fairly) hard at school and went to universities and got a job as a lawyer (indoors no heavy lifting granted) I get fcuk all from the government and cloned political parties that squat at the heart of power in the UK except contempt and tax bills. I'm a lawyer, I don't even get a begruding 'well done suing people'.

I have not convinced Lady Sumo to calf out some burdensome state subsidised sprogs and even when I was suddenly made redundant by virtue of an old boss wrecking the company and doing one, I managed to be out of work for a paltry 4 weeks.

I am therefore sick to my back teeth by the various dynasties that squat in Westminster, bleating their tired old message that I am bad because I am not married and oh, shouldn’t I get married. Instead of coming up with a solution for society’s ills (how about take a 2 year holiday and stop with the fcuking social engineering!) these Muppets are pinning their hopes on people having a bit of hassle to formalise a break up.

That’s it, Britain will be perfect. There will be no ‘celeb culture’, obviously this never existed pre 1980ish. The economy will flourish. Foreign investment will flow to useful endeavours instead of jacking up the housing market so that MPs can make a quick buck flipping houses. All implausibly off the back of anyone who has a long term girlfriend being bullied into paying the state for the privilege of you being together.

Friday, 4 February 2011

If Democracy is the tyranny of the majority and Anarchy is survival of the guy with the biggest rock could we perhaps compromise with a Kritarchy?

The term ‘kritarchy’, compounded from the Greek words ‘kritès’ (judge) or ‘krito’ (to judge) and ‘archè’ (principle, cause), appears to be coined in 1844 by the English author Robert Southy. In its construction it resembles more familiar political terms such as monarchy, oligarchy and hierarchy. ‘Kritarchy’ is mentioned in among others Webster’s Unabridged Dictionary, The Oxford English Dictionary and the American Collegiate Dictionary. According to its etymological roots, a kritarchy is a political system in which justice (more exactly the judgment that seeks to determine justice) is the ruling principle or first cause.

If ‘monarchy’ denotes rule by one person and ‘oligarchy’ rule by a few, it is tempting to understand ‘kritarchy’ as referring to rule by judges. However, the use of the word ‘rule’ should not mislead us into thinking that the rule of judges is like the rule of monarchs and oligarchs, much less that it is a particular sort of oligarchy. Monarchs and oligarchs aspire to political rule, i.e. the ability and power to enforce obedience to their commands, rules, decisions and choices on their subjects. In short, monarchs and oligarchs rule by a mixture of direct command and legislation. Judges, on the other hand, are supposed not to legislate but to find ways and means to settle conflicts and disputes in a lawful manner. They do not seek to enforce obedience to their commands as such, but respect for law, which is an order of things that is understood to be objectively given and not something that answers to whatever desires or ideals the judges may have.

In contrast with other political systems, where they have been incorporated as magistrates into a system of political rule and empowered to use coercive means to drag citizens and residents before their benches, judges in a kritarchy have no subjects. Monarchs and oligarchs impose, or allow their servants (judges, prosecutors) to impose, their rulings on those of their subjects on which they want to impose them. In other words, they ‘pick’ their subjects (which is the root meaning of the Latin ‘legere’, from which the word ‘lex’ for legislated or statute law is derived). In a kritarchy on the other hand, judges do not choose which persons will appear before them. Instead, people desiring to have their conflicts and disputes resolved by judicial judgment will ‘pick’ their judge.

The distinctive characteristic of a kritarchy is therefore that it is a political system without the institution of political rule. If one thinks of it as ‘the rule of judges’, one should remember that these judges enjoy no particular privileges or special powers. It is ‘the rule of law’, not the rule of legislators, judges or any other category of privileged officials.