interlaw.org.uk

Fraud is a big threat to modern capitalist society and it perhaps reflects where we are as a society more than most other things.

Fraud is perhaps the most selfish of acts, showing a total disregard for others and the damage that is done to the greater good.

From the biggest financial institutions down to the general population, is it not the case that we have a major fraud issue and has it become so embedded in our society that Governments are unable or unwilling to tackle it ?

This may sound like an overly pessimistic assumption on first consideration but the facts suggest otherwise. We have the very well publicised instances of large scale fraud and reckless greed behaviour in major banking institutions, we have the MP expenses scandal, we have evidence that a significant proportion of society are prepared to lie and embellish the truth when applying for jobs, and we have had the huge and obvious disconnect with fraud whiplash claims, where the number of claims made has gone up exponentially whilst the number of car accidents has fallen.

If indeed we do have a real problem in our society, does it not need to be tackled head on, whether that means criminal sanctions for however many people are prosecuted, even if it’s a lot ? Whilst the fraud in the big institutions and organs of power is very much on the agenda and in the news, there isn’t much of a debate on a societal level, where we are perhaps brushing the issue under the carpet. Doing that will perhaps just move the problem sideways.

An example of the above, many would argue, especially negligence lawyers such as LLoyd Green that the new personal injury rules, which come into law today, are an example of sidestepping the real issue. Insurance companies have had data for some years about the extent of personal injury fraud, especially whiplash, but there have been very few prosecutions based on this. Instead, they have ruthlessly lobbied Government to change the overall system so that in many cases, costs will not be recoverable from them. The result of this is that inevitably a large number of the smaller value injury claims, including whiplash, will no longer be viable to take to court and the incentive to make a claim will be diminished, but by doing this, it doesn’t tackle the underlying issue of fraud and also, as a corollary, will certainly punish the many honest and legitimate claimants who have been injured due to negligence.

It is entirely possible that the fraud issue will simply move somewhere else, as seems to have been the case in the past. Take for example the self certified mortgage issue – many thousands of people were able to get large mortgages based on certifying their own income, and this resulted in large scale fraud where loans were obtained effectively by deception. The practice became so widespread that action to deal with it became unrealistic. Other examples include huge social security fraud problems and immigration related fraud also.

Unless and until society takes fraud seriously and we all recognise that the impact of it will ultimately effect all if us, and unless and until there are real consequences of fraud, we have a problem, and that problem is potentially a threat to the entire economic and moral system.

If the performance of a contract becomes impossible, or if the performance of a contract is fundamentally different from the original agreed purpose, the particular contract is said to be “frustrated”. Where a contract is determined to be frustrated in such a manner, the involved parties are discharged from all obligations under the contract and as a subsequence of this there is no claim for breach of contract.

Illegality

A contract will be deemed to be frustrated if the performance of the contract will lead to an illegal act. This will occur if a new law relating to the performance of the contract is implemented after the contract has been agreed, as highlighted by the old case of Avery v Bowden (1856). Under the terms of the contract in that case, the claimant was responsible for carrying cargo. However, before the agreed date of shipping, war broke out. As a result certain new laws were imposed, including one that made it illegal for cargo to be loaded at a port of an enemy. This law meant that the contractual obligations could not be met legally, and the contract was frustrated.

Impossibility

As mentioned, if the performance of a contract is subsequently found to be impossible, it will be deemed to be frustrated. One such example is the case of Taylor v Caldwell (1863). In this case, the claimant was organising several concerts, and hired a venue for this purpose. The Claimant incurred substantial costs given the grand scale of the four planned events. Approximately one week prior to the date of the first concert, there was an accidental fire at the venue. The damage meant that the concerts could not go ahead. It was held that the contract had been frustrated due to the fact that the performance of the contract was now impossible.

Substantial Events

Another type of frustration relates to the contractual obligations which become substantially different from what was agreed, through no fault of the parties. For example, the purpose of the contract may no longer be relevant due to an unforeseen event or a new regulation may make previously agreed contractual provisions no longer reasonable.

Effect of frustration

If a contract is found to be frustrated it is automatically terminated under common law. The time of termination is held to be the time at which the event that caused the frustration occurred. Under the Law Reform (Frustrated Contracts) Act 1943, any deposit will be returned (minus any expenses). This is provided that there is no contract clause that deals with the effect of frustration. However, the more important, and indeed more complicated issue, is what happens to payments and losses already incurred.

Apportioned losses

Both parties may have suffered certain losses, and in order to understand how these are apportioned, it is beneficial to look at the case of Fibrosa Spolka v Fairbairn (1943), the findings of which were enhanced by the 1943 Act mentioned above. In Fibrosa, it was explained that if a party has not shown consideration, losses accrued to the point of frustration could be recovered. Further, the affected party may be entitled to recover a deposit if none of the benefit had been received.  The case also made it clear that it is important to look at whether or not any sums due were already due before the frustrating event occurred.

No Frustration

A particular event may have been covered in the contract by a Force Majeure clause. Such a clause is one that states that the parties will not be responsible for any delay or breach of obligations arising as a direct result of an extraordinary event such as an act of God or terrorism. If such a clause does exist, there is no need to examine whether or not the different types of frustration and relevant case law tests have been met. Other examples of where a contract will not be frustrated include where it simply becomes difficult, time consuming or expensive for a contract to be performed. This is a commercial consideration and not something which will allow a contract to be discharged. Further, a contract will not be frustrated if the event in question arises as a direct result of an act, error or omission of the concerned party or if the event could have reasonably been foreseen.

Further resources

http://www.e-lawresources.co.uk/Frustrated-contracts.php

http://www.lexology.com/library/detail.aspx?g=bd78a422-d7c3-4214-95f5-031b91438a21

http://www.gannons.co.uk/expertise/business-law/

http://www.darlingtons.com/site/srvbusiness/srvcontractlaw/

By way of follow up to our last post where we talked about Rocketlawyer and the sizeable fundraising it had acquired, that company has not yet secured a foothold in this country, where Epoq is still the market leader and it seems that Epoq are also gearing up for expansion. Epoq works with some big institutional clients and also has an offering which law firm scan provide on their own sites, called Directlaw, but now the company is branching out further with an offering for the public, both business and personal, on issues such as wills and probate or legal documents for new businesses.

The new website is http://www.mylawyer.co.uk and, having had a look around the site, it is easy to navigate and offers some excellent value for many documents, still with the ability to have a document checked by lawyers.

It will be interesting to find out how things pan out in the legal market, with Epoq, Rocketlawyer, Quality Solicitors, tesco law and all sort sof other fast moving developments – there hasn’t been so much activity in the legal market probably for a century !

Legal docs sites gaining traction

Whilst many lawyers are still snoozing and don’t recognize that the market for legal services online, like the market for everything online, is becoming ever more important, a number of the new breed of legal document suppliers are well and truly “making hay”.

Whilst one size may not fit all with many legal documents, as against this, there are many situations where a standardized or fairly standardised legal contract or document, available at a tiny fraction of the charges of solicitors, is a very attractive option, particularly now that a number of the legal document suppliers are offering interactive services and documents.

As a sign of this burgeoning market and threat to law firms who simply continue burying their heads in the sand, a mere 5 months after raising $18.5 million, Rocket Lawyer, one of the most successful of the US online legal services providers has now raised a further $10.8 million.

Like many of the legal services companies, in addition to selling document, contracts, legal forms and other services, the power of their site and their brand is being used to partner up with relevant local law firms for situations where the standard contracts does not fit a particular set of issues or circumstances. Again, smart thinking. We have to say we have little sympathy with lawyers, many of whom have done little to nothing to invest in their own marketing and then whinge when other companies do their marketing for them, charge them fees and then control the legal marketplace.

Personal Injury fraud not just a British problem

Fraud generally has been on the rise for several years at least, possibly partly because of a degree of economic desperation or greed and partly also because of a creeping feeling that some aspects are not even criminal, of which we will say more in other posts.

However there has most certainly been a big problem with personal injury claim fraud, principally so called postcode or whiplash claim fraud for some time, and rankly the insurers have done far too little to stamp this out. Instead their answer has simply been to a rise premiums for all, so the innocent suffer.

This is truly ridiculous in our view. In some areas of Britain, and even on some streets, individuals claim to be incredibly accident prone, and there is no doubt there have been literally thousands of stage managed shunts and minor accidents.

But this problem is not confined to the UK. Injury claims and accidents are a lucrative business in other parts of the worlds, and the type of fraud is slightly different.

In Florida, to counter escalating costs of claims and fraud, action was taken some years ago to try and curtail it. Law was passed whereby a system of no-fault insurance became compulsory way back in 1972. This meant that all drivers would have to have $10,000.00 of personal-injury insurance cover which they would claim against regardless if fault, with compensatory damages capped at low levels. Entirely sensible and likely to all but eradicate fraud you would think … well think again.

But over the years, the number of claims which mysteriously would amount to the full $10,000.00 has hugely increased. Why ? Yes, you guessed it, cozy cartels, where brokers would make it in the interests of  lawyers, doctors and the insured to make the figures inflated.

We suppose this just shows that, rather than increase premiums, insurers should be much more bullish in monitoring all aspects of injury claims and looking to stamp out these trends wherever they arise.

The easy option of simply raising premiums until the problem is so obvious it can’t be ignored is totally outrageous on the law abiding majority in our view. What do you think ?

This post supplied by http://www.claims-personal-injury.co.uk. Many thanks.

Marker down re costs in the Employment Tribunal

One of the most frustrating aspects of the current Employment Tribunal system for employers is the general “no costs “rule for claims made in the Tribunal.

This, combined with the fact that there are no court fees payable for Tribunal claims (unlike almost all other court services in England & Wales) has meant that many employees and ex-emp0loyees have felt that they have nothing to lose by bringing a claim, even if only motivated by spite or perceived revenge.

Bearing in mind employers can easily rack up costs of thousands defending any employment claim, many opt for making payouts, often via compromise agreements, as the “lesser of 2 evils”.

The employment tribunal does have discretion to award legal costs against either party based on abusive, vexatious or disruptive behavior, although historically such orders have been rare, but perhaps they are now on the increase.

In a recent case, costs awarded against an employee were awarded and these have now been assessed and moderated at a staggering £100,000.00, which is way above the usual limit of £10,000.00 (again the Tribunal has discretion to allow more than this basic limit).

Is this just a one-off case or does it herald a new approach by the Tribunals which will stem the ever increasing tide of tribunal claims ?

This post supplied by Gannons employment lawyers.

Can News Of the World employees sue for stigma ?

In addition to many interesting (and disturbing) aspects of the current News of the World hacking scandal, interesting employment and contract law issues arise relating to the many journalists who have lost their jobs with the sudden closure of the publication.

Employment solicitors advise that should any of the journalists struggle to secure new jobs, they may argue that this failure is related to their professional reputation being impugned by association.

A 1997 House of Lords ruling provides a little known legal basis for claiming damages, based on breach of contract and in particular, a breach of the duty of mutual trust and confidence inherent in all employment contracts. However, when the judgment was given in the 1997 case, the Judge did state that these types of claims, due to the myriad reasons a prospective employee might not succeed with a job application, would be “inherently difficult to prove”.

Some positive news for solicitors !

A recent poll conducted by RTS Media with 500 consumers contains some good news for solicitors and there has been precious little of that around for many months. First, the mildly bad news. It seems that nearly 1/3 of consumers would be prepared to instruct a major brand, not currently associated with law, as soon as that brand enters the legal marketplace.

On the other hand, for some types of matters, such as divorce and conveyancing, the percentage who would much prefer to instruct a solicitor was between 70-80%. This is good news for solicitors although perceptions may well change when and if some major brands enter the market. Solicitors have traditionally not prioritised marketing and it seems to us that what this survey shows is that most of the market is still there for solicitors to lose but a different attitude, budget for marketing, and ensuring this is well spent are likely to be critical in the next few years.

Post supplied by Lloyd Green Solicitors who specialise in personal injury compensation claims.

Law Society argues for pause in legal aid reforms

The Law Society is lobbying the Government hard to think again about the extensive planned cuts to legal aid, which would potentially remove access to justice for as many as 500,000 cases a year. The Government seems intent on rushing through these measures rapidly and part of the Law Society “beef” is that there has been no proper consultation and that this is vital as the type of cases which would be affected involve fundamental legal rights in areas such as divorce, maintenance for children and medical negligence.

Other arguments put forward by the Law Society are that the Government thinking that significant sums will be saved by reducing legal aid is flawed and that such costs will simply reappear in different areas, such as there will be more litigants in person which will create delays and inefficiencies in court process and increase court costs and that there will also be a “double whammy” in that if legal aid is reduced more claimants will look for no win no fee agreements, and the Government is planning to only allow a claimant’s legal costs on success to come out any award and not be payable by the opponent as a success fee. This will again reduce access to justice the Law Society claims.

The UK’s legal industry, with an annual turnover of £18bn, could be severely damaged, the society claims. It has offered the government an alternative programme for saving £384m through reducing unnecessary court hearings and other efficiencies.

The Law Society has received criticism from some solicitors in the past for either not reacting or reacting too late to changes which affect solicitors. The Law Society seems to have listened to this and has gone as far as commencing a media campaign under the banner “Sound Off for Justice”. These “adverts” are appearing on taxis around London now.

Predicting whether a marriage will succeed

Jonathan Romain, a Berkshire rabbi  has devised a 20 question quiz which he believes may help couples to find out if they are suited.

According to a 2008 population trends report from the Vital Statistics Output Branch, from the Office of National Statistics, one in two marriages end in divorce in England and Wales.

Below are the questions from Dr Romain :-

•             Do you know your partner’s  favourite food ?

•             Will your partner want to get a pet in the future ?

•             Does your partner suffer from any allergies ?

•             Describe one of the happiest moments of your partner’s life before you met ?

•             Answer the same question regarding the saddest moment ?

•             Does  your partner want to have children and if so, how many and when?

•             How regularly does your partner  visit  family ?

•             Are there any family traditions your partner has which he/she would wish to continue?

•             What is your partner’s favourite kind of holiday ?

•             Is  your partner  a saver or spender by nature ?

•             Is it easy for you to buy him/her a birthday present ?

•             Where would your partner like to live in the foreseeable future ?

•             Who is the biggest  influence on your partner excluding you ?

•             Your partner’s  greatest regret ?

•             Joint,  separate bank accounts or a combination ?

•             Private or public  education  for children?

•             Summarise the partner’s ideal view of the future?

•             What  habits or characteristics do you have which  he/she does not like?

•             What would you most like to change about him/her?

•             What are the main values he/she has?

We have highlighted some of the questions in bold as being very obviously significant and perhaps indicative of whether a relationship may flourish. Some of the others we are not sure about, but that’s just our opinion. Dr Romain concludes that getting 15 or more answers correct indicates a  great future, 9 to 14 suggest good chances but work is needed and less than 8 right suggests thinking again !.