Equality in the Courts
For many years I taught the case of Donoghue v Stevenson, the basis of the Law of Negligence.
When I show students the case on the British & Irish Legal Information Institute website, I point out that Mrs Donoghue was described as a "pauper", in other words she could not afford her own legal representation; that was provided by the philanthropy of her solicitor.
Mrs Donoghue was a factory worker who suffered food poisoning in a cafe, the greatest part of her claim was that she lost two weeks wages; further, for technical reasons, there was a difficulty in bringing her claim under the then present Law.
The case reached the House of Lords (now the Supreme Court) in 1932, where the famous "Atkin Dictum" was laid down, shaping Negligence not only for England and Scotland but right across the World.
At the height of the Great Depression, the World could see that, in Britain, the Law was open to all and anyone could get justice, even at the highest level - at the same time, the Law was improved for the benefit of anyone who might have a claim because of someone else's carelessness.
The principle of equality before the Law, and open access to it, had been spectacularly upheld for the entire World to see.
At this point, I ask students, if the same case arose today what result might they expect? After World War II, the government set up the "Welfare State", in a Britain all but bankrupted by defending the World against Hitler's Germany, where food rationing was still in force, free health care and free secondary education were made available to all - to create "a land fit for heroes".
Shoulder to shoulder with these was the provision of the Legal Aid Scheme, so anyone could seek justice, whether they could afford it or not.
It must have seemed, and essentially it was, that the rights of people like Mrs Donoghue had been secured, Britain really was a land of freedom and justice.
Not least because Welfare State changes made it easier to sue government, successive governments have found legal aid "expensive" - how inexpensive is injustice? Over the decades governments have become meaner and meaner, blaming lawyers for the inadequate funding of access to justice.
But it is really in most modern times that British governments have become so cheap mean and small that they no longer provide a standard of access to justice taken for granted in the 1930s or amongst the rubble left by the Second World War.
A claim like Mrs Donoghue's is no longer eligible for legal aid.
For generations any solicitors offering "no win no fee" were routinely struck off.
This sort of "ambulance chasing" was thought to be what got lawyers such a bad name that the name "attorney" had to be changed to "solicitor".
Now, of course, by government edict, it is the only way to fund most personal injuries claims.
Is this satisfactory? Well, mostly through insurance, it is a good deal more satisfactory than "no win no fee" might have been in the past - but is this good enough? A claim the size of Mrs Donoghue's is, today, defined as a "small claim" and in such a case claimants are expected to represent themselves - no costs are awarded.
It is possible for the court to certify that the issues of Law are so important that it should be dealt with by a different process in a higher court - might Mrs Donoghue have achieved such a certificate if she came to court today? Could she find a lawyer do the necessary work on her behalf, when the existing Scottish and English precedents seemed to be against her? And, even if all this went well, is an insurance company likely to think achieving a change in the Law a good use of its funds? Yes, the Western World has to recoup the cost of the wild recklessness of bankers.
Does it have to do so at the expense of poor victims of carelessness? Further, is this the only increase of inequality governments have smiled upon? We are at a time when markets are destabilised by fear, and the speculators who prey on this.
One of the practises of speculators is "short" selling on falling markets.
The concept is to sell property (shares) which the seller does not own in the expectation of being able to buy them, at a later date, cheaper than the price in the sale and before they have to be delivered to the innocent buyer, thus making a profit.
It seems to me the principle of Law that should apply is "nemo dat quad non habet" a venerable principle as you see from the Latin, it means "you cannot give what you have not got.
" In other words the speculator's sale is unlawful and amounts to a deception.
Since the speculator will hardly admit he does not own the shares he purports to sell he is dishonest, and his purpose thus to obtain money is also dishonest.
It therefore seems to me the speculator may be guilty of obtaining money by deception contrary to the Theft Act 1968.
If prosecuting authorities would test this view in the courts, it is not impossible we should see some of the speculators who are now so damaging the World's economies behind bars.
The people we are seeing put behind bars today in the U.
K.
are those rioters and looters who stole consumer goods in the recent days of madness.
Of course such people should be punished for the damage they have done.
How much more should we punish speculators for their crimes, when these crimes cost us all literally thousands of times more than the damage done by rioters? If we do not want a truly resentful under-class in the West, had we not better reconsider the representation of poor people in court, and had we not better consider punishing the crimes of the rich with the same force we punish the crimes of the poor?
When I show students the case on the British & Irish Legal Information Institute website, I point out that Mrs Donoghue was described as a "pauper", in other words she could not afford her own legal representation; that was provided by the philanthropy of her solicitor.
Mrs Donoghue was a factory worker who suffered food poisoning in a cafe, the greatest part of her claim was that she lost two weeks wages; further, for technical reasons, there was a difficulty in bringing her claim under the then present Law.
The case reached the House of Lords (now the Supreme Court) in 1932, where the famous "Atkin Dictum" was laid down, shaping Negligence not only for England and Scotland but right across the World.
At the height of the Great Depression, the World could see that, in Britain, the Law was open to all and anyone could get justice, even at the highest level - at the same time, the Law was improved for the benefit of anyone who might have a claim because of someone else's carelessness.
The principle of equality before the Law, and open access to it, had been spectacularly upheld for the entire World to see.
At this point, I ask students, if the same case arose today what result might they expect? After World War II, the government set up the "Welfare State", in a Britain all but bankrupted by defending the World against Hitler's Germany, where food rationing was still in force, free health care and free secondary education were made available to all - to create "a land fit for heroes".
Shoulder to shoulder with these was the provision of the Legal Aid Scheme, so anyone could seek justice, whether they could afford it or not.
It must have seemed, and essentially it was, that the rights of people like Mrs Donoghue had been secured, Britain really was a land of freedom and justice.
Not least because Welfare State changes made it easier to sue government, successive governments have found legal aid "expensive" - how inexpensive is injustice? Over the decades governments have become meaner and meaner, blaming lawyers for the inadequate funding of access to justice.
But it is really in most modern times that British governments have become so cheap mean and small that they no longer provide a standard of access to justice taken for granted in the 1930s or amongst the rubble left by the Second World War.
A claim like Mrs Donoghue's is no longer eligible for legal aid.
For generations any solicitors offering "no win no fee" were routinely struck off.
This sort of "ambulance chasing" was thought to be what got lawyers such a bad name that the name "attorney" had to be changed to "solicitor".
Now, of course, by government edict, it is the only way to fund most personal injuries claims.
Is this satisfactory? Well, mostly through insurance, it is a good deal more satisfactory than "no win no fee" might have been in the past - but is this good enough? A claim the size of Mrs Donoghue's is, today, defined as a "small claim" and in such a case claimants are expected to represent themselves - no costs are awarded.
It is possible for the court to certify that the issues of Law are so important that it should be dealt with by a different process in a higher court - might Mrs Donoghue have achieved such a certificate if she came to court today? Could she find a lawyer do the necessary work on her behalf, when the existing Scottish and English precedents seemed to be against her? And, even if all this went well, is an insurance company likely to think achieving a change in the Law a good use of its funds? Yes, the Western World has to recoup the cost of the wild recklessness of bankers.
Does it have to do so at the expense of poor victims of carelessness? Further, is this the only increase of inequality governments have smiled upon? We are at a time when markets are destabilised by fear, and the speculators who prey on this.
One of the practises of speculators is "short" selling on falling markets.
The concept is to sell property (shares) which the seller does not own in the expectation of being able to buy them, at a later date, cheaper than the price in the sale and before they have to be delivered to the innocent buyer, thus making a profit.
It seems to me the principle of Law that should apply is "nemo dat quad non habet" a venerable principle as you see from the Latin, it means "you cannot give what you have not got.
" In other words the speculator's sale is unlawful and amounts to a deception.
Since the speculator will hardly admit he does not own the shares he purports to sell he is dishonest, and his purpose thus to obtain money is also dishonest.
It therefore seems to me the speculator may be guilty of obtaining money by deception contrary to the Theft Act 1968.
If prosecuting authorities would test this view in the courts, it is not impossible we should see some of the speculators who are now so damaging the World's economies behind bars.
The people we are seeing put behind bars today in the U.
K.
are those rioters and looters who stole consumer goods in the recent days of madness.
Of course such people should be punished for the damage they have done.
How much more should we punish speculators for their crimes, when these crimes cost us all literally thousands of times more than the damage done by rioters? If we do not want a truly resentful under-class in the West, had we not better reconsider the representation of poor people in court, and had we not better consider punishing the crimes of the rich with the same force we punish the crimes of the poor?
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