When is an alteration not an alteration?

Exciting news about public sector outsourcing (well, it’s relative) draws me back to the blog . This time it’s Serco, fingered by the Guardian (EXCLUSIVELY!) for alleged misconduct in the performance of a contract to supply out of hours GP services in Cornwall.

The allegations include understaffing and excessive wait times for the patient helpline. There’s also this:

Among the most serious allegations being investigated by the CQC are that Serco management altered logs tracking response times and targets.

…

Computer logs, seen by the Guardian, of data-tracking calls to the service and response times measured daily and weekly against targets, show one set of figures at the end of 12 February for the number of calls meeting or failing to meet targets in various priority categories on 11 and 12 February. But different figures for the same dates appear in the log as displayed on 15 February.

The effect of the altered figures is to remove some of the “red” failed targets and make them “green” achieved targets, and to alter the percentage of targets met in other categories.

Sounds dodgy, right? This is Serco’s response as reported in the Guardian’s story:

Explaining the apparent discrepancy in figures, Serco said that it “audits all calls daily to understand areas in which issues are highlighted and where these may have fallen outside its control, including where a patient is deemed to have caused delay. Such cases are then reported to the PCT and changed accordingly on the internal management systems.” This enables the company to give the PCT two reports, one with figures that include “cases where patients have caused delays” and one without. This promotes greater transparency and does not constitute the wrongful alteration of data, it said.

Sadly for the Guardian’s EXCLUSIVE!, Serco’s explanation is absolutely correct. There is no scandal to these alterations, or at least not the scandal that is presented to us.

In any outsourcing contract the service provider will be obliged to perform in accordance with specified targets. In this case, those targets evidently include response times for calls requiring home attendance by medical staff, with the required response times being dependent on priority assigned to each call.

It is likely that the targets are in the form of “X% of calls in Category Y must be responded to within Time Z”. There may well be financial penalties for falling below this standard, for example by specifying a credit for each percentage point below X% over a given measurement period such as a day or a month.

Now, the fees charged by the service provider to the purchaser will be calculated on the basis of certain agreed inputs and assumptions. For a service performed using actual people (in this case, GPs and other medical staff), the most important input is likely to be the number of employees required to run the service in accordance with the required targets.

For a service where demand varies in a relatively unpredictable way (in this case it is the number of people requiring medical attention in any given period), the number of employees required to meet the targets will fluctuate in an equally unpredictable way. In practice, however, it will be very difficult to flex the number of employees at short notice because of the specialist nature of the work.

For a service of this nature, therefore, we would expect the service provider to either employ enough staff so that any foreseeable level of demand can be met, or to miss the performance targets with reasonable frequency.

The first of those options is expensive, and therefore unacceptable to the commissioning PCT. There is also a practical problem of finding enough medically qualified staff in the first place, and then retaining them when they end up playing cards for half their shift.

But the second option is unacceptable to potential service providers. Who wants to bid for a contract where there is every chance of losing money because of the frequency with which penalties must be paid? [You could charge a “risk premium” for this, but for the PCT that is commercially equivalent to option 1].

What happens in practice, then, is that the PCT and the service provider agree an assumed demand for the service. If the actual number of patients calling for a home visit matches that assumed demand (or falls below it), then the performance targets can be met and penalties will be paid by the service provider if they are not.

If the actual number of patients calling for a home visit during a specific period exceeds the assumed demand, however, the service provider is relieved from the obligation to meet the performance targets for that period. In the contracting jargon this is called a “relief event” (stop sniggering at the back).

In practice, the service provider can probably flex a bit by calling in some overtime from off duty staff, so there is usually a tolerance above the assumed demand where the targets still apply. The assumed demand may vary seasonally, or according to time of day, based on real world data about actual past demand.

The actual relief event cited by Serco in response to the Guardian’s story is “where a patient is deemed to have caused delay”, but in practice this is simply the other side of the assumed demand coin – if individual appointments take longer than expected, fewer can be managed by the same number of employees. It is therefore probable that an assumed appointment length is used in conjunction with the assumed demand.

So Serco is off the hook here – it was entirely legitimate for it to alter the performance record to take account of the relief events. The Guardian has perhaps made a category error, assuming that it was looking at a record of how the Cornwall PCT out of hours service was performing, rather than a record of how Serco was perfoming against the contractual requirements.

But this does illustrate something that I’ve written about before – contractual accountability is not the same as political, regulatory or management accountability. Serco can only be held accountable for its performance against the specified contractual requirements, and not for the success of the service in its widest sense.

You can see this at work in other elements of the Guardian’s story. For example, here is Serco’s reponse to the allegation that only a single GP was available to cover half the county on several occasions:

Serco employs a range of skills across Cornwall to meet patients’ needs and the PCT’s requirements. These include nurse practitioners, emergency care practitioners and GPs. It is typical to use a range of roles to provide out-of-hours services and there is no service requirement for Serco to supply all cars, clinics or the call centre solely with GPs. [my emphasis]

To be fair to the PCT, what this probably reflects is an attempt to align contractual requirements to service goals by specifying outputs (numbers of visits made) rather than inputs (number of GPs on shift). But it is a further illustration of the challenges of public sector outsourcing.

Public sector services are complicated. Not just in structure, although the spread of complexity in health problems is surely greater than the spread of complexity in, say, mobile phone user complaints, but also in terms of stakeholder perception and both the definition and measurability of success.

That means that the great article of faith of lawyers and consultants, that any outsourcing can be successful if the contract and commercial design is good enough, may not in practice be true in the public sector. Maybe there are just too many variables, so that even if the perfect contractual structure could be found nobody except its drafter would be able to understand it.

And maybe our politicians and our press and, frankly, ourselves are just too damn difficult to please.

Bizzle’s big adventure

A phlegmatic Bizzle faces the future

So, this feels weird.

A week ago I left the company where I’ve worked for more than 14 years. Tomorrow I start a new job, in a different city, with a very different business.

Lest anyone think, having read this blog and my Twitter feed over the last 18 months, that I’m doing this because I hated my previous job, let me set that record straight.

When I started working for this company, I’d been drifting for more than five years post-university. I didn’t really know what I wanted to do for a career, or even if I wanted anything that you might call a career in the first place.

My first job there was in a call centre, and I took it because it was there and it was better than bar work. I spent two years phoning customers of a couple of large retailers to ask them to pay their overdue accounts.

And then a job in the legal team was advertised. Until that point I didn’t even know that we had a legal team, but it sounded pretty cool and I had a vague interest in legal aspects of collections work that I thought I might be able to blag into a plausible interest in the law generally.

Bizarrely, it worked. And then they paid for me to do the GDL and the LPC, and then when I was done with all that they set up an in house training contract for me and a colleague, and then (even less plausibly) they asked me to manage the legal team.

All of that I owe to three people, who supported and mentored me and set an example for me to live up to. They each put up with a lot from me over the years, and without them I wouldn’t be what and where I am today.

So this is the place where I learned how to be a lawyer, and how to be a manager, and how not to be a total dickhead. It gave me pretty much everything I have in my career and my life, including my marriage.

And there were some awesome people there over the last decade and more. Awesome people aren’t as blogworthy as irritating sales managers, but they’re the people who made the job great when it was great and tolerable when it wasn’t.

So that’s quite a lot to leave behind. I’m going from a place where I know everything and everyone, to a place where I know nothing and no one.

This is quite scary, but in a good way. There’ll be new people and new work and new things to learn, and in six months I’ll forget that I was ever scared in the first place.

It’s probably the most exciting thing I’ve done for years, and I’m really looking forward to it. It’s a big adventure for a little bear.

All of this is by way of saying that this blog is going to become even more occasional than it already is. I’m going to be pretty busy in my new role, and there isn’t going to be any woo there (I hope).

So thank you for reading over the last 18 months, and for all the support and linking and commenting that you’ve given me. I’ll see you around.

Consenting kidults

Thomas Rainsborough: Civil War hunk

“For really I think that the poorest hee that is in England hath a life to live, as the greatest hee; and therefore truly, Sir, I think itt clear, that every Man that is to live under a Government ought first by his own Consent to put himself under that Government; and I do think that the poorest man in England is not at all bound in a strict sense to that Government that he hath not had a voice to put Himself under.” Thomas Rainsborough, quoted in the Putney Debates record book of 1647

Yesterday there was a flurry of comments from freeman on the land types on the very first woo piece that I wrote, way back in June last year. I guess that for people obsessed with the Magna Carta that counts as rapid rebuttal, right?

I’ve more or less given up on responding to comments from the woo theorists, it being about as rewarding and effective as arguing with a table. But I’m making a special exception for this comment from “Thomas Wayne”:

but if statutes do not require consent then surely that would be suggesting we are slaves would it not?

are we not governed by consent ?

legislation are rules of a society, who says we have to be a member of said society?

where is the social contract?

Most importantly, why are our constitutional rights ignored and subverted ?

The last question derives, I think, from the woo theorist obsession with the Magna Carta, and I’ll gratefully leave that to the constitutional lawyers and historians. But I’m interested (on a strictly amateur basis) in the questions about consent and government in the rest of the comment, which are perhaps relevant to more mainstream libertarian thought as well.

I think that I understand the impulse to view issues of liberty through a personal lens: the law affects me on an individual level, and is imposed by a remote and authoritarian state. That is by definition a restriction on my personal freedom, in the sense that it prevents me from acting entirely as I might otherwise wish.

But I think that to reduce this to an issue of personal consent to each law, or to government generally, is an error of scale. Government being a state-level institution, the only meaningful consent to it must be at that same level, in the sense of the collective consent of all of the people living in that state.

My individual consent, therefore, would be relevant only as a component of that collective consent. If consent is a precondition to government, and it is the collective will of the people to be governed, then we are governed whether or not it was my own will that we should be.

This is surely what Rainsborough meant: not that a man (and it was only men he had in mind) was not bound by a government to which he had not consented, but that he would not be bound if he had not been given the opportunity to participate in the giving of the collective consent. In democratic societies, at least, most people have that opportunity, albeit that the mechanisms by which the collective will is assessed may be more or less satisfactory according to country.

So if I purport to withdraw my consent from a particular government or from government generally, this does not mean that I cease to be governed. This could only happen if the collective consent was withdrawn, which is to say if a sufficiently large number of my fellow citizens agreed with me.

The alternative view would raise extreme practical challenges. How would we, in everyday dealings, be able to tell who had consented and who had not, and therefore to understand on what basis we are to interact with them?

This is not to say that the consent of the individual would be irrelevant: the collective consent is an expression of multiple individual consents, and any change in that collective consent must start with individuals. The mechanism for expressing that collective consent is, of course, the subject of much theorising and debate.

If the collective consent cannot be changed, however, the only meaningful way in which an individual consent to government could be exercised would be through the withdrawal of the individual from the state altogether. Modern states being generally defined territorially, this must mean physical withdrawal rather than mere refusal to participate.

Every physical territory in the world is governed in some way, so it may be practically impossible to escape the state altogether. On the other hand some states are weaker than others, so there are perhaps places (such as Somalia or Afghanistan) where one could in practice live untroubled by government and law.

But does that mean that one would not be subject to the control of others? The world is now a crowded place, and it seems to me to be a matter of historical fact that where people live in proximity to each other hierarchies develop and those who feel themselves to be stronger seek to dominate others.

And that is the real problem with the idea that individual consent to government is meaningful. Concepts of consent and the social contract are attempts to find a theoretical basis for the fact of government, but they do not in practice describe how the state came into existence.

As Francis Fukuyama has it in The Origin of Political Order:

We might label this the Hobbesean fallacy: the idea that human beings were primordially individualistic and that they entered into society at a later stage in their development only as a result of rational calculation that social cooperation was the best way for them to achieve their individual ends.

The modern state, and the various forms of government that accompany and embody it, are codified and structured expressions of an innate tendency to cooperation, dominance and hierarchy. The choice you have is not between being governed and being free, it is between different types of dominance (or perhaps between being the dom and the sub, as it were).

So the state does not care about your individual consent; it will continue to govern you regardless as long as it has the physical and social power to do so. The state creates and enforces legislation through that same power, which may be more or less coercive according to the form of government.

Collective consent may still play a role, in the sense that if a critical mass of citizenry withdraws it there may be a change in the institutions of the state (perhaps accompanied by a degree of violence). But that is still a matter of power rather than contract, and the state tends to persist even in an altered form.

So pending major depopulation or significant evolutionary change, we are going to be governed whether we like it or not. That government can be more or less coercive, and more or less authoritarian, but it is going to be there.

Is Western government and the legislation it imposes through imperfect democratic mechanisms “slavery”? If you think there is a binary choice between perfect liberty and total loss of autonomy, perhaps, but I suspect most of us are adult enough to accept that there must be some restriction on our freedom to act as we wish.

In any given society at any given time, some of those restrictions may be excessive. But there is at least a debate, and the opportunity to participate in it, about where the limits should lie.

But if that’s too hard, you could just have a tantrum about not being allowed to do whatever you want.

___________________________________________________

Postscript: I don’t have any special expertise in constitutional theory, and this post is essentially me ordering my thoughts on the matter in public. So I won’t be particularly surprised if what I’ve written turns out to be bollocks, but it’d be helpful if you showed your workings when you tell me that.

Elvis leaves the building

This is a transcript of the speech given by Mr Bizzle on the occasion of his leaving the employment of Acme Outsourcing after some ten years and more.

Ladies, gentlemen, and accountants. It is gratifying to see so many of you gathered here this afternoon, to satisfy yourselves that I am actually leaving Acme Outsourcing.

In truth, I am myself surprised at this turn of events. When one has laboured over such a number of years (more than I care to remember) to achieve the begrudging respect of one’s peers and colleagues, one does not set it lightly aside.

My especial genius must have been apparent to all from my earliest days at Acme Outsourcing. It was never difficult to stand out against such mediocrity, and I am grateful to my colleagues from the sales team in particular for having the courage to display their mental enfeeblement to the world for the purposes of comparison.

[Some agitated murmurings in the assembled crowd are apparent at this point]

I recall in particular, and with no little fondness, our plan to sell call centre services to the Spanish market. It unexpectedly transpiring that the people of Spain do not universally speak or understand English, and persistent monolinguality being rather a feature of the post-industrial communities that are our source of cheap labour, this scheme fell sadly short of the glorious success that had once seemed so assured.

[Cries of “Olé!” from the floor]

And who could forget the modest proposal to break into new markets by identifying customers of our banking clients who find themselves in straitened circumstances and offering them the welcome relief of paid for debt management plans? The sight of creative genius stymied by the footling bureaucracy of mere data protection law tugs at the heartstrings.

[Here a voice, tentatively identified as the Sales Director of Acme Outsourcing, can be heard to whisper loudly, “I still say that was a great idea”]

But I am grateful to the originators of these and other initiatives, for keeping me gainfully employed over the last decade and more. It has been, if not exactly fun, never less than entertaining.

I am also grateful for the opportunity that has been afforded to me to hone my lawyerly skills over the years. I know that you have come to appreciate, even admire, the perfection of my withering sarcasm for questions that I deem to be unworthily trivial, and my virtuoso profanity when discoursing on impossible deadlines and the moral turpitude of salesman.

You may also recall with wistful nostalgia my patient explication of complex legal concepts with judicious applied expletives and artfully disguised contempt for the mental capacities of my audience. Perhaps you will chuckle fondly as you reminisce about the elegant restraint with which I demonstrated the superiority of my intellect to colleagues and clients alike.

But I would like to reassure you all that, when I was shouting at you, patronising you, and, yes, even when I was throwing a chair at you [Here Mr Bizzle looks meaningfully at the Head of Business Development], it was always for your own good. My only intention was to save you from yourselves and your own rampant half-wittedness.

[Some objects are thrown from the crowd. Mr Bizzle is struck a glancing blow by what may be a stapler]

Settle down, settle down. I will finish in short order.

It remains only for me to make one final announcement. You have known me over the last several years as merely a lawyer with a sarcastic tone and anger management issues, but I am so much more than that.

Yes, the time has come at last for me to reveal myself as renowned legal commentator and ursine cigar aficionado Legal Bizzle. I tell you this now because you, as much as I, have been the stars of the much-loved blogs and tweets that I have produced as a leading Internet celebrity.

[Much hubbub from the floor, from which can be discerned divers cries of “Legal who?”, “Is ‘e ‘avin’ a laugh?” and, from the Head of IT, “What’s a blog?”]

Some of you may feel that writing frankly about the moral, intellectual and sexual failings of colleagues is a repugnant and unprofessional breach of trust. However, I am certain that, after the passage of time and some medication, you will be grateful to me for recording your triumphs and, more frequently, inglorious failures for posterity.

On the other hand, bite me.

And now I must take my final leave of this asylum for the insanely optimistic and clinically incompetent. I wish you all luck as you face up to the future, and to your own inadequacies, without me. You’re going to need it.

[Fighting breaks out in the crowd. Mr Bizzle exits accompanied by security]

The language of contract negotiations: a guide for the perplexed

Sometimes everybody knows what you mean. The phrase “With respect…” is universally understood to mean its precise opposite, and “I’m not being funny, but…” invariably means “I am about to say something racist”.

But law has its own secret language, opaque even to its practitioners on occasion. It’s not just the Latin and the tortured circumlocutions; even the most innocent phrases have hidden meanings.

As a service to civilians and tyro lawyers everywhere, therefore, I have collated (with the help of my friend and colleague @littlekiwi68) thirty of the most commonly used phrases in contract negotiations and matched them with their real meanings. Use this knowledge wisely, and you will soon be bamboozling and belittling your opponent with the best of them.

(NB: If you’re negotiating opposite me, I mean everything I say. Obviously.)

What contract lawyers say	What contract lawyers mean
We’re aiming to get this signed by the end of the month	We’re expecting you to give in on everything
I think we can deal with these points relatively swiftly	Would you mind giving in quickly so I can get to the golf course in time to play a full round?
Could we have a quick break out session?	I need to phone my golf buddy to tell him I’m going to be late
Are you up to date on the discussions we’ve been having with your Sales Director?	I will try to have you fired if you don’t give in on everything
We want a supplier that’s easy to contract with	When we want your opinion, we’ll give it to you
Let’s do a page turn	I’m going to humiliate you by pointing out all your typos
Our standard terms and conditions are balanced	We’re screwing you, but if I say this enough times you might believe it
We take a partnership approach to contracting	Kneel before me, minion
That’s our standard clause	Only the Finance Director knows why we use this clause, and he’s too busy to speak to you
This is in all of our contracts	We downloaded 20 precedents from PLC to save having to think for ourselves
Our parent company requires us to have this clause	I’ll get fired if I change even a comma of it
That’s the market position	That’s how we did it in the last contract I worked on
That’s a commercial point	I failed GSCE maths
Nobody’s ever raised this issue with us before	I hate you for making me think about why we do it this way
All of our other customers agree to this	Why can’t you be as gullible / lazy / spineless as everyone else?
We don’t use that clause in that way	We do use that clause in that way, but you might not buy our product if I admitted it
That clause doesn’t mean what you’re saying that it means	It’s awful drafting and I don’t understand it either
I’ve got ten years of experience in this field	Ten years of good lunches has diminished my mental faculties to the point where this is the only argument I’ve got left
I’m not happy that you’ve raised this issue	I’ve run out of convincing arguments so I’m going to shout at you for a bit
Is that really your position?	I think I look really macho if I shout at you
I understand why you take that position	I agree with you, but I can’t be too pragmatic in case my client thinks I’m weak
I hear what you’re saying	I’m going to ignore what you just said and make the point I was going to make anyway
We need a liability cap that allows us to recover all of our losses	I don’t understand what a liability cap is
We expect suppliers to stand behind their services 100%	I still don’t understand what a liability cap is even after you’ve explained it to me
It’s too late in the day to raise new points	I’d have got away with it if it wasn’t for those meddling lawyers
We’ve made lots of compromises in this negotiation	We deliberately chose an extreme starting point so we could guilt you into submission
I need to take instructions on this point	You’ll be cross when I say no, so I’m going to blame it on my client
This needs to be signed off by our board	This is the only part of the contract that our board will read
Can you send me a mark up by close tomorrow?	My time management is so poor that we’ll miss our deadline if you don’t give me at least a fortnight to review your changes
We need to get this finalised by the end of the week	The real deadline is next month, but I’m going to Barbados for three weeks on Monday

Plod, Inc: some thoughts on outsourcing the police

The Guardian splashed yesterday on “government plans for police privatisation”. Of course, by ‘government’ they meant ‘West Midlands Police Authority’ and by ‘privatisation’ they meant ‘outsourcing of certain functions’, but still: private policing sounds scary, right?

Well, maybe it is, and maybe it isn’t. A nice man from G4S went on the news last night to calm everyone down, although perhaps his decision to answer questions in a creepy monotone didn’t entirely reassure those worried about the takeover of public services by alien robots.

In any event, others will write far more knowledgeably than I about the politics of this proposal and its potential effects on policing and civil liberties. Perhaps I may be permitted, however, to offer a few thoughts on the practical challenges of outsourcing a service of this nature.

Many will worry about an ethic of public service being lost when police work is undertaken by the private sector. I think that Group4Bot is right when he says that existing employees transferring under TUPE will bring that ethic into the outsourced service, although it is reasonable to worry about its dilution over time.

He is, I think, on much less secure ground when he says that accountability is ensured through contractual performance measures and remedies. Or rather, he is correct, but only up to a point.

I would argue that contractual accountability is narrower than political, regulatory or management accountability. The former measures only whether the terms of the particular contract have been complied, whereas the latter are (or should be) concerned with outcomes rather than process.

This is because contracts set out a defined service for a defined price. In theory, you could write a contract where outcomes are the only measure, with the service provider free to choose the method of delivery. In practice the buyer wants to retain as much control as possible and the service provider wants to mitigate the risk of uncertain expectations, and this tends to lead both towards the inclusion of detailed specifications.

As a result, contractual accountability is only as good as the contract itself. The service provider’s obligation is to provide the service as described; if the specification is incomplete, the buyer will have no remedy for the service provider’s failure to perform the missing activities.

And because the price has been quoted on the basis of the contractual description, the rectification of errors and omissions is likely to be at the buyer’s cost. The same is true for variations that arise through changing needs and priorities.

This is perhaps no big difficulty for a straightforward service, where the scope is well understood and experts are on hand to ensure that the contract is comprehensive. Any changes that are required after contract signature will, if everyone has done their job well, be limited in nature.

The bigger and more complex the service, however, the more chance there is of errors and omissions in the initial contract. According to the OJEU Contract Notice excerpted by the Guardian, pretty much all civilian and uniform police work is covered by this tender, in just two lots. It doesn’t get much bigger or more complex than that.

That’s a lot of contract, and the task is made harder by the novelty of the transaction. Some very fine lawyers and consultants will be paid big fees to get it right, but frankly it’s an almost impossible task.

Contractual accountability is also retrospective, and purely commercial. If the service provider breaches the contract, the buyer can claim damages either on a liquidated basis (e.g. through a contractual service credit mechanism) or by bringing a claim for the breach. For some activities (say where someone’s liberty is at stake), one might prefer that governance is more focused on personal accountability and preventing mistakes in the first place.

And then there is the challenge of creating a contractual performance regime that accounts for the many things that can go wrong in police work. Some procedural errors may not become apparent for many years, and then only after further investigations and appeals with all of the expense that go with them (which in some cases will be largely incurred by stakeholders other than the police).

Even if a workable regime could be devised, would a commercial provider sign up to a contract under which they could incur substantial liabilities years after the services had been performed? Well, pretty much anything is available at a price.

Add to all of this the desire of politicians, from central government to our exciting new elected commissioners, to meddle in policing strategy and priorities. If their tabloid-pleasing / chattering-class-coddling (delete as applicable) wheezes require a contract change, the service provider gets to put in another bill.

All of which is to say, you can probably still have accountability for an outsourced service – but it will cost you. I don’t really know whether outsourcing will make the police better or worse, but I’m doubtful about whether it will turn out to be cheaper in the long run.

Occupy Woo Street

King John, modelling his Magna Carta hair

I’m not the man to give you learned commentary on the Court of Appeal’s judgment in the Occupy LSX eviction case. I don’t think there’s much call for the in house view on public law issues.

I am, however, absolutely the man to poke fun at Paul Randle-Jollliffe. Here are paragraphs 29-31 of the Occupy LSX judgment:

29. With the exception of Ms Samede, the defendants making the present applications are seeking to set aside all the orders made by Lindblom J, on the basis that they contend that the Judge ought not to have found for the City at all, but should have dismissed the claim and allowed the Camp to continue in place. It is convenient to deal first with one or two rather esoteric arguments raised by Mr Randle-Jolliffe.

30. First, he challenged the judgment on the ground that it did not apply to him, as a ‘Magna Carta heir’. But that is a concept unknown to the law. He also says that his ‘Magna Carta rights’ would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case. Somewhat ironically, the other two chapters concern the rights of the Church and the City ofLondon, and cannot help the defendants. Mr Randle-Jolliffe also invokes ‘constitutional and superior law issues’ which, he alleges, prevail over statutory, common law, and human rights law. Again that is simply wrong – at least in a court of law.

31. Another ground he raised was the contention that the City had no locus standi to bring the proceedings ‘as the current Mayoral position has been previously usurped by the Guilds and Aldermen in Contravention of the City ofLondon’s 1215 Royal Charter’. We do not understand that point, not least because both the Lord Mayor and the Aldermen and Guilds (through the Commonalty and Citizens) are included in the claimants.

I’m rather fond of the dry manner in which the judiciary respond to “esoteric arguments”. What those of a more excitable temperament might call “batshit crazy”, Lord Justice Burnton calls “a concept unknown to the law”.

One wonders what “a Magna Carta heir” might be, if such a concept existed. The estimable Scrapper Duncan (who is a member of the Occupy LSX legal team) suggests that Randle-Jolliffe attempted to introduce his family tree into proceedings, which raises the possibility that he means that he is of baronial descent (never mind that the greater proportion of the population can say the same after the 20-odd generations that have passed since the Magna Carta).

On the other hand, this suggestion from Adam Wagner makes just as much sense:

@LegalBizzle Maybe he meant Magna Carta Hair?

— Adam Wagner (@AdamWagner1) February 22, 2012

An insistence on the currency of thirteenth century charters is, of course, a trope of the Freeman on the Land woo theory. Whether or not Mr Randle-Jolliffe would describe himself as such I do not know, but a brief consultation with Doctor Google shows that he is a serial maker of bizarre Freedom of Information requests and “a practising Lay Law/Legal Advocate in Family Law and other areas of law”.

Many of those FOI requests allege bias and fraud in the administration of family law, which is an area where we have seen Freemen and their fellow-travellers before. Thankfully, however, the voters of the Isle of Wight contained their alarm at the prospect of “state kidnapping” and did not return Mr Randle-Jolliffe when he stood for Parliament there in 2010.

I should make it clear that the title of this post is intended as a joke, and that I do not believe that Paul Randle-Jolliffe is representative of the Occupy movement or even of any significant strand of opinion within it. ScrapperDuncan’s analysis of the judgment and of Mr Randle-Jolliffe’s role in the appeal is a useful corrective to that view.

But it is a shame that this peddler of arrant woo is able to attach his name to the Occupy cause in a public setting, especially as he is not the only such person to have done so. There is a real risk that this reinforces a view that the movement is animated by irrational political and social views, and can be safely marginalised and disregarded.

On the other hand, it may be of some benefit that the sheer wrongness of woo theory is highlighted by the courts from time to time, to the extent that it deters some who might otherwise be attracted by its claims of efficacy in legal disputes.

It is doubtful, however, that being called “simply wrong” will deter Mr Randle-Jolliffe from his beliefs. For the true believers, the refusal of the courts to recognise their own illegitimacy merely demonstrates that self-same illegitimacy.

But then I’m a corporate shill, so I would say that, wouldn’t I?

Shocked, shocked!

A libel lawyer, yesterday

A couple of weeks ago David Allen Green poked some gentle fun on Twitter at the habit of certain lawyers of professing themselves to be variously but profoundly surprised, shocked, and appalled by whatever behaviour they are writing to complain about.

As David said (I paraphrase, as the exchange is no longer available), the offices of London’s leading libel practices must, if their letters are taken literally, be in a state of shrieking alarm at some outrageous slur or other on an almost constant basis. One fears for the mental health of these sensitive and delicate souls.

Perhaps it is not surprising that libel lawyers should be the drama queens of the legal world, posturing and flouncing rather in the manner of their celebrity clients. Except that they are not by any means unique in this regard.

It is not uncommon for a certain type of commercial lawyer to profess their justified anger, or (much worse, obviously) profound disappointment at the raising of some point or other in the course of negotiation. Like a dowager duchess finding a housemaid to be over-familiar, they are distraught at the sheer effrontery.

The man who asked for direct loss of profits to be excluded

Often this is accompanied by some rather queenly condescension about “the market position”, or perhaps some reference to “my 20 years of experience in this field.” There might be a bit of amateur dramatics, with eyes rolled, sighs heaved, and even (for the true artiste) papers chucked.

But while some lawyers probably are prone to unleashing their inner Mariah Carey when crossed, all this drama is obviously more often a tactic. The old litigation advice, to present your strongest face first, has perhaps been carried over into non-contentious matters.

This approach clearly works on some level, else it would not be employed so extensively. Where costs are high (in litigation), or there is an imbalance of bargaining power (in transactional work), a little tactical anger goes a long way.

And in some ways, it’s all in the game, all part of the theatre of the law. In the manner of Captain Renault, we are shocked, shocked! at the very differences and disagreements from which we earn our livings.

Shocked!

One wonders, however, if it has become a default mode for some lawyers. All too often the flounce and the tantrum are used in place of persuasion and argument, in circumstances where the latter would be more appropriate and the former is counter-productive.

Does anyone seriously think, for example, that defendant libel lawyers read of the surprise and shock felt by their correspondents and think, “Well, if my client has upset them that much…”? I imagine that what most lawyers, including those self-same correspondents, would do is to calmly analyse the facts and the law before advising their client on how to respond.

But the initial instinct of others might be to say, “Right, if they’re going to be like that…” and dig their heels in a little more. Result: entrenched positions and a long, expensive and bad-tempered process.

Evidently this is not just my personal bugbear, as the lawyerly archetypes described in this wonderfully intemperate blog by Nicky Richmond for The Lawyer show. (Nicky, you may not be surprised to learn, tweets under the handle @saysitstraight). 

What makes all this particularly ridiculous is that the lawyers who use these tactics almost certainly see through them well enough when on the receiving end themselves. They bridle when condescended to by other practitioners, and yet continue to believe that this is an effective way to negotiate.

I could conclude by quoting the biblical dictum to do as you would be done by. I’m not a religious man, though, so I’ll leave you with the sage advice of Mr Michael Winner: Calm down, dears.

Happy woo year

Giving it some humpty

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

The new year brings a new letter from one of my more regular freeman on the land correspondents. In an exciting addition to the woo theory for 2012, this one is headed “All words and phrases carry the meaning that I intend.”

I assume that my correspondent’s intention is to counter my annoying habit of insisting on a standard English interpretation of words when parsing his increasingly bizarre despatches from planet woo. He can now answer every objection by saying, “Ah, but that’s not what I meant.”

Perhaps, like so much of freeman theory, this is based on a vague conception of how lawyers use language. When we write contracts, we agree that certain words and phrases will carry a special meaning for the purpose of that specific contract, which may or may not correlate to the natural meaning of those words.

But those special definitions are, of course, a mutual agreement between both parties to the contract. Defined words are capitalised, and the corresponding definitions are set out clearly (one hopes) in the contract itself, so that readers who were not involved in the drafting and negotiation can understand what is intended.

Perhaps the freeman thought process is, “Lawyers can decide what words mean, and therefore so can I.” Thus the freeman might believe that objections to their, er, unique approach to meaning (like the ‘berth’ = ‘birth’ bobbins) can be sidestepped altogether.

But I do wonder where this leaves the freeman claims that their theory represents the true law of the land. (Which land? Any land, apparently).

After all, if anyone can choose what meaning their words bear, and isn’t obliged to disclose that meaning to their interlocutors, how is any consistent application of law possible? On what basis would a court, even if constituted in accordance with the common law as conceived by the freemen, adjudicate between competing claims?

Such a system of law would have a certain entertainment value, I suppose. And the alternative explanation, that the statement is just an expedient and slightly desperate attempt defeat any counter-argument that creditors might put forward, surely can’t be true, can it?

Ahem.

The Santa Claus Letters 8: Pre-pack the halls…

Elves and Young LLP

Accountants – Insolvency Practitioners – Recovery Experts

 

TO ALL KNOWN CREDITORS

22^nd December 2011

Dear Sirs

THE SANTA CLAUS GROUP – IN ADMINISTRATION

We give you notice, per paragraph 46 of Schedule B1 of the Insolvency Act 1986 that on 21^st December 2011 Toby John Barr-Humbugg and James Alexander Funless, each of Elves and Young LLP, were appointed Administrators of the Santa Claus Group (“the Company”) in the North Pole District Registry. A notice of the Administrators’ appointment has been delivered to the Lapland Registrar of Companies.

In recent weeks the Company has been experiencing cash flow difficulties as a result of the need to purchase stock (in the form of presents to be delivered during the coming Christmas period) before payment (in the form of mince pies and sherry) is received.

The Company has also been become engaged in litigation to enforce its intellectual property rights, and has itself been the subject of several employment and breach of contract claims. This has resulted in a further depletion of cash resources.

We also understand that the Company has become subject to regulatory scrutiny following separate allegations that it has breached consumer protection legislation, invaded customers’ privacy, and failed to comply with immigration and child protection regulations in relation to its Elvish workforce. This has lead to further uncertainty about the Company’s ability to continue trading as a going concern.

You will appreciate that, as a result of the Administration, your account with the Company is frozen (literally as well as figuratively). You should provide a detailed account of the amount owing to you as at the date of Administration, together with details of any security that you may hold, for the attention of the Administrators at the address given at the foot of this letter.

We also note that, due to the somewhat disordered nature of the Company’s record keeping (which we understand was based on “elf magic”), we have been unable to identify the intended recipients for the presents currently stored at the Company’s warehouses. This, together with the lack of operating capital, means that the Company will not be able to effect any deliveries during the coming Christmas period.

If you are one of those recipients, therefore, you should submit an account of the value of presents ordered in the manner indicated above. A proof of claim form is attached for that purpose.

Prior to our appointment, we instructed Grinches as agents to conduct a valuation of the Company’s assets. Grinches valued the Company’s stock and plant at £952,362 at present market value, as against liabilities of £1,360,251,115.

However, we are able to confirm that, immediately following our appointment on 21^st December, we completed a sale of the Company’s business and assets to Kris Kringle Limited (“the Purchaser”). The sale consideration was £1,632,0120.32, which is considerably in excess of the break up valuation.

Please note that as part of this sale the Purchaser acquired the Company’s customer list. Our understanding is that they intend to contact over the next 48 hours all those who had arranged delivery of presents for the coming Christmas period, to advise them regarding alternative purchase and delivery options. Please note, however, that any claim you have against the Company may not be set off against such purchases.

In the meantime, the Administrators will prepare proposals for a distribution of funds, which will be submitted to the Company’s creditors within 8 weeks of the commencement of the Administration. A meeting of creditors will be convened thereafter to consider those proposals.

Please note that the Administrators are agents of the Company and act without personal liability.

Yours faithfully

For and on behalf of

The Santa Claus Group

 

TJ Barr-Humbugg

Joint Administrator