Curiously specific, but why there?

""[The Agreement] is expressly governed by English law and contains a clause which, in an eccentric excess of particularity, names Milton Keynes as the exclusive place of jurisdiction."
- EWCA, unknown judgment

Milton Keynes is a new town in the South of England, not too far from London. Everything I've heard about suggests it's not particularly amazing but apparently its courts are to be trusted.

The crime of "aggravated mayhem"...

To someone who speaks British English, most of the time (law speak the rest) so it's interesting to see how words sometimes evolve in the North American tongue. Take this example:

CA Penal Code s 205: "A person is guilty of aggravated mayhem when he or she..."

Most of us would, I suspect, understand mayhem in the sense of chaos or confusion. Turns out that its historical meaning is that of violent injury (http://www.oed.com/viewdictionaryentry/Entry/115310) though it doesn't seem to have been used as such since the late 19th century at least.

I came across the term as a result of this article, pay close attention to the text of the link: http://www.guardian.co.uk/commentisfree/2011/jul/14/rupert-murdoch-man-lost-penis

Strongly worded criticisim...

A commentator's perspective on some statutory drafting:

"A person engages in [resale price maintenance] when and where they do any one of a number of defined acts in s 37(3). Section 37 is horrendous. It is the type of statutory defating best read in a dark room with a wet towel around one's head. Having done that and as a service to readers, we have tried to summarise RPM below..."

Of course these are competition law specialists talking so their perspective on complicatedness and incomprehensibility can either be regarded as:
a) supremely valid; or
b) somewhat ironic

Competition Law for non-specialists, Andy Nicholls and Matt Sumpter

When I grow up I wanna be a....

Courtesy of the County Courts Act we have the mysterious office of a "Trinity Master" upon whom the Court of Appeal in Admiralty cases is to call:
"Where, on an appeal by a party to any Admiralty proceedings which have been heard in a county court with the assistance of assessors, any party makes application to the Court of Appeal in that behalf, the court shall summon Trinity masters to assist on the hearing of the appeal if the court is of opinion that such assistance is necessary or desirable."

Who are these mysterious figures? Well it actually takes a little bit of digging (ie more than several google searches) but it's worth it. It all stems from Trinity House which is effectively a guild of lighthousemen and sea pilots established in the 1500s. The members of the Corporation are divided into Elder and Younger Brethen. Elder brethren are known as Masters.

Here's a good quick summary:

"Trinity house
The Corporation of Trinity House, established as a guild of mariners by King Henry VIII of England in 1517, in the Parish of Deptford Strond, in the County of Kent (now near the Tower of London). The Trinity House has been responsible, since the time of Queen Elizabeth I, for the erection and maintenance of lighthouses, lightships and buoys in English waters. It is also the authority for the licensing of pilots. The "Elder Brethren" of Trinity House (retired sea captains, also known as "Trinity Masters") serve as nautical assessors to the High Court, Admiralty Division."

Another true gem, not to mention a flagrant abuse of habeus corpus

For those non-lawyers who might look at this, and I don't expect there to be many, habeus corpus is a fairly ancient procedure to rapidly challenge whether someone is being held in custody/imprisoned legally, it's a fairly special procedure and is usually allocated an urgent hearing. I even remember a case where the judge held a hearing in his lounge in his dressing gown in one instance. It's a powerful remedy or mechanism, of course there are certain people inclined to abuse, such as in the following.

"[1] Gordon: of the House of Israel (Mr Israel) seeks interim orders to effect the release of a “canine”, known as Sally. Sally was impounded by Dog Contro Officers employed by the Hauraki District Council (the Council) because Mr Israel had failed to pay her registration fee.

[2] In brief, Mr Israel deposes that “Sally is a living being who is loved and cared for as part of the Israel household”. Mr Israel does not accept that Sally is a dog. He submitted that the term “dog” has a number of meanings that are pejorative in nature. A “dog” is something he regards as “undesirable and therefore suitable for or requiring regulation”. On the other hand, he sees a canine such as Sally, who is inoffensive and a “well loved member” of his household as something that ought not to be the subject of regulation.

[3] For those reasons, Mr Israel declined to pay a registration fee for Sally to the Council. As a result of his failure to do so he was prosecuted under the Dog Control Act 1996. He was convicted after a defended hearing in the District Court at Waihi on 27 October 2006. He has lodged an appeal against conviction and the fine and Court costs imposed.

[4] Because Mr Israel failed to comply with a requirement that he pay the registration fee, Sally has been impounded by [the] Council...

[6] Mr Israel seeks, in the alternative:
a) An order for habeas corpus, releasing Sally from detention by the Council.

b) An Anton Piller order (I gather) to search the Council pound and to remove Sally into his care.

c) An interim injunction to restrain the Council from destroying Sally and requiring it to deliver Sally into his care pending substantive issues being determined.

[7] The Council oppose the application on the grounds:
a) That the writ of habeas corpus is only available to human beings. ...

[8] Mr Israel drew my attention to a sealed document issued by Nga Uri o Tupoto (Inc), purportedly as a “Record of Canine Whanau”...

(b) Habeas corpus

[14] The ancient writ of habeas corpus is designed to protect the liberty of the subject. It ensures that human beings who are alleged to be unlawfully detained may be brought before the Court to inquire into the reasons for the detention.

[15] The Habeas Corpus Act 2001 reaffirms “the historical and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty”: s 5(a). The Habeas Corpus Act speaks of the Court’s jurisdiction to order release of a “detained person”.

[16] Mr Israel argued that the phrase “person” extended to a canine. That argument is untenable...

[28] It is unsurprising that the term “dog” is not defined by the Dog Control Act. Parliament must be taken to have assumed that the citizens of this country were perfectly capable of identifying a dog when they saw one. Sally is described as a “female, black border collie” who, when seen by a Dog Control Officer (on Mr Israel’s property) on 27 February 2006, was with a litter of pups. That is ample evidence to demonstrate that Sally is a “dog” for the purposes of the Dog Control Act."

Gordon: of the House of Israel v Sexton HC, 15 December 2006

The niceties of legal language

Some people reading this (if indeed there are any) may have heard of Private Eye magazine. For those who haven't, it is, in brief, a combination of satirical, investigative and media journalism. Which basically means it's devoted to rarking up public figures and other organs of the press, as well as investigating scandals and exposing hypocrisy. I quite enjoy it, even if it is occasionally heavy going, and even when it criticises the Guardian, one of my more trusted sources of information.

The people behind Private Eye are also quite fearless and the regular targets of lawsuits in the UK. It has been said that the current editor, Ian Hislop, is the most sued man in Britain. In this he's really only continuing a long-running tradition of the magazine, as the following illustrates.

The magazine had made an allegation relating to a Mr Arkell, apparently with ample proof. He lawyered up, apparently the exchange goes like this:

" Solicitor (Goodman Derrick & Co.):
We act for Mr Arkell who is Retail Credit Manager of Granada TV Rental Ltd. His attention has been drawn to an article appearing in the issue of Private Eye dated 9th April 1971 on page 4. The statements made about Mr Arkell are entirely untrue and clearly highly defamatory. We are therefore instructed to require from you immediately your proposals for dealing with the matter. Mr Arkell's first concern is that there should be a full retraction at the earliest possible date in Private Eye and he will also want his costs paid. His attitude to damages will be governed by the nature of your reply.

Private Eye:
We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.

[No further reply]"

There has been a subsequent tendancy to respond to other legally menacing letters with the phrase:
"We refer you to the reply given in the case of Arkell v. Pressdram"

More here: http://gruntfuttock.posterous.com/arkell-v-pressdram and on Private Eye generally: http://en.wikipedia.org/wiki/Private_Eye

An unusual route to a finding of miscarriage of justice

This case has a grain of the serious in it alongside the extremely bizarre bit of it that I'm going to post, in that the main character obtained a second appeal and the dismissal of certain convictions by launching a wave of principally civil litigation against various parties that he alleged to have contributed to his conviction. The Attorney-General then applied to have him declared a vexatious litigant, this is one of the decisions in that proceeding which summarises the history of the matter nicely. The alleged crimes are pretty horrible as is the possible miscarriage of justice so this is perhaps better filed under the heading of odd rather than amusing.

"
The facts

[3] This is a most unusual case. The Attorney-General applied under what is now s 88B of the Judicature Act 1908 for an order that no civil proceeding should be issued by Mr Palmer without leave of the High Court because he was a vexatious litigant. At the time of our interim judgment, reported in [2005] NZAR 46, Mr Palmer was serving a sentence of preventive detention following convictions after jury verdicts in this Court at Auckland on two counts of sexual violation. He had previously been convicted in this Court at Rotorua on two lesser sexual charges. His appeal to the Court of Appeal had been dismissed, as had his subsequent application to the Governor-General under s 406 of the Crimes Act 1961 for the exercise of the Royal prerogative of mercy by referring the convictions to the Court of Appeal.

[4] Subsequently Mr Palmer issued a large number of proceedings against a variety of parties. We found no fewer than nine to be vexatious as infringing the principle that a conviction must be tackled either directly by appeal, or by application (under s 406 or otherwise) for the exercise of the prerogative of mercy, or by application for judicial review of Crown failure to exercise that prerogative or statutory power. The claims found to be vexatious were:

• one against the manufacturer of a public toilet the door of which is said to have opened unexpectedly so as to subject him to one of the Rotorua charges
• an appeal against a judgment striking out that proceeding;
• the private prosecution of the boyfriend of the primary Auckland complainant;
• an application for orders directing the issue of seven informations of perjury against that complainant
• an application for habeas corpus alleging that the Crown and defence counsel had conspired to exclude the DNA evidence, the primary Auckland complainant had committed perjury, the trial judge had displayed lack of impartiality, and the judge who presided over the Court of Appeal hearing was biased
• proceedings against Telecom alleging that it was responsible for its witness’s giving incorrect evidence at the Auckland trial
• proceedings for judicial review of the Auckland committal
• proceedings against the primary Auckland complainant alleging malicious prosecution
• the counterclaim struck out by Williams J for the reasons reported at [2004] NZAR 374.

[5] But in the interim judgment we declined, in the exercise of discretion, to make the order sought by the Crown. That was largely because there were two disturbing features of the case, to which we referred in the interim judgment and on which the Court of Appeal later relied in allowing Mr Palmer’s appeal against conviction on a subsequent reference under s 406.

[6] One was that the trial judge had declined Mr Palmer’s counsel leave to cross-examine the complainant on the provenance of a semen stain on her clothing which she told the Police had been deposited by Mr Palmer in the course of his alleged offending but which the ESR had reported had come from her boyfriend.

[7] The other was that at the trial a Telecom witness had given evidence that no telephone call had been made to the complaint’s home during the period when she asserted she was with Mr Palmer elsewhere; yet evidence given by a Telecom witness under subpoena at the private prosecution of the boyfriend established that there had been four such incoming calls.

[8] Following a subsequent reference under s 406 the Court of Appeal found that Mr Palmer had suffered a miscarriage of justice.

Attorney-General v Palmer 23 August 2007 (HC)

Scrambled companies

It's mostly just the language of the headnote in this which is great:

"The Commissioner of Competition (Applicant) v. Superior Propane Inc. and ICG Propane Inc. (Respondents)


Court of Appeal, Linden J.A.--Ottawa, September 8, 9, 18 and 19, 2000.
Competition -- Practice -- Motion for stay of Competition Tribunal decisions, continuing hold separate order with respect to merger of respondents -- Not necessary to prevent eggs from being scrambled -- Irreparable harm not established as feasible to divide merged business within reasonable time period."

Though in all fairness it does follow the language of counsels' submissions and the judgment:

"[11]I must now consider the second hurdle that must be overcome by the applicant, irreparable damage. Counsel for the Commissioner, basing himself on U.S. authorities, argued eloquently that once the eggs are scrambled, they cannot be unscrambled. In other words, if the two companies are allowed to proceed with the merger pending the appeal, it will be almost impossible to undo the damage caused by this in the event of success in the Court of Appeal...

[13]In my view, the metaphor of scrambled eggs is dramatic, but not entirely apt. When one scrambles eggs it is impossible to unscramble them, but a merged company is not exactly like scrambled eggs. It can be broken up, though it is maybe difficult to do so. Competition can be restored. It is not enough for it to be hard or inconvenient to do so. To obtain a stay, the damage must be truly irreparable and proved to be so."

A two hundred year recess...

This case must be one of the most unexpected to appear in the English law reports, it concerns the Court of Chivalry, also known as the Court of the Earl Marshall whose jurisdiction is over heraldic symbols:

"On 1 March 1842, the Kings of Arms of Her late Majesty Queen Victoria granted a coat of arms and crest to the recently incorporated borough of Manchester, since enhanced to the dignity of a city, and supporters were granted by Garter's warrant on the following day. The Corporation of the City of Manchester now allege and complain that the defendant company, the Manchester Palace of Varieties Ltd have over a period of years usurped the achievement granted to them by displaying the arms in the auditorium of the theatre and by using them as their common seal...

It is not contended that this court, however long a period may have elapsed since it last sat, is no longer known to the law. It was originally the Court of the Constable and Marshal and has probably existed since the Conquest. At least it had been in existence for very many years before the reign of Richard II, who reigned from 1377 to 1399, and during his time the famous case of Scroop v Grosvenor was heard before it. The hereditary office of Lord High Constable was abolished on the attainder of the Duke of Buckingham in 1521, since when the court has always been held before the Earl Marshal or his surrogate alone and his right to hold the court and to adjudicate at least on heraldic matters was recognised and confirmed by Letters Patent of James I in 1622 and those of Charles II, which were read at the opening of this court...

Hawkins' opinion is of particular value, as he was in practice as a serjeant at the time when this court last sat, that is, in 1737..."
 
Nonetheless it seems to have slipped through the cracks and whether by accident or ignorance none of the many reforms of English justice between 1737 and 1955 abolished it:


"I have no hesitation in holding that this court has jurisdiction to deal with complaints relating to the usurpation of armorial bearings. Blackstone, it is true, regarded the court as obsolete when he was writing not many years after its last recorded sitting, and his view is indorsed by Sir William Holdsworth in his History Of English Law, vol 1, pp 578-580. No doubt, one of the reasons why the court fell into disuse was because the way in which its decisions are to be enforced is a matter of great doubt and obscurity, but once it is established that this court exists, whatever interval may have elapsed since its last sitting, there is no way, so far as I know, of putting an end to it save by an Act of Parliament. There may be very good reasons for a court no longer exercising powers which were undoubted ... "

 A caution however:


"and if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction. Moreover, should there be any indication of a considerable desire to institute proceedings now that this court has been revived, I am firmly of opinion that it should be put on a statutory basis, defining its jurisdiction and the sanctions which it can impose."


The idea of discovering a long lost court is a thrillng and amusing one, unfortunately not something that is likely to happen in one's everyday line of work.

 Manchester Corporation v Manchester Palace of Varieties Ltd, [1955] 1 All ER 387