The Bizzle

"Saving your ass since 1999"

The Santa Claus Letters 7: You’d better watch out

This instalment of the Santa Claus Letters is kindly contributed by in house lawyer, blogger and tweeter @greggio_f.

SNOOPY, RED & BARON LLP

When your privacy counts, you can count on us!

 Donner, Blitzen and Rudolf LLP
The Santa Claus Building
St Nicholas Street
The North Pole

21 December 2011

Dear Sirs

Re: Santa Claus Group and Little Timmy

Data Subject Access Request under s 7 Data Protection Act 1998

We understand that you act for the Santa Claus Group.

We have been instructed by a Mr Timothy Taylor (commonly known as “Little Timmy”) to request, on his behalf and under section 7 of the Data Protection Act 1998, all information regarding Little Timmy held by the Santa Claus Group, including Santa plc, Rudolph Logistics Limited and Elf Enterprises Limited.

In particular, please provide details of:

  1. All personal data relating to Little Timmy held by the Santa Claus Group;
  2. Which entity in the Santa Claus Group is the “data controller” in connection with the personal data;
  3. The purposes for which the personal data are being processed;
  4. The class of recipients to whom they are being or may be disclosed;
  5. The physical location(s) at which the personal data is/are being stored and processed; and
  6. How and from whom the personal data has been or is being collected.

In respect of the identity of the data controller, I note that none of the companies named at paragraph 1 are recorded on the Information Commissioner’s Office (“ICO”) register of data controllers. You should be aware that it is a statutory requirement for organisations that process personal information to notify the ICO of that processing and that failure to notify the ICO may constitute a criminal offence.

In relation to the physical location of the personal data, my client is concerned that his personal data may be being processed outside the EEA, namely at the North Pole. If so, we fail to see how you can be satisfied as to the adequacy of the laws in force in the North Pole with respect to the protection of personal data for the purposes of the eighth data protection principle. We understand that no country currently owns the North Pole or the region of theArctic Oceansurrounding it and accordingly that no such laws are in force.

Notwithstanding the above, our client’s primary concern relates to the means used by the Santa Claus Group to collect the personal information on which it has based its decision that he has not been “good” and should be added to the “naughty list”. Our client maintains that he has not consented to the collection of this personal data, whether directly from him or from a third party.

It has come to our attention in this regard that the Santa Claus Group itself has distributed the following propaganda regarding its principal, a Mr Santa Claus:

“He sees you when you’re sleeping
He knows when you’re awake
He knows if you’ve been bad or good
So be good for goodness sake!”

Our client demands an immediate explanation as to how Mr Claus knows these things. Our client informs us that, with the exception of naps taken during the allotted time in his primary school class and the few occasions he has fallen asleep in the car while returning to his home, he sleeps only in the privacy of his bedroom and with the door and curtains shut. It is reasonable to infer therefore that your client’s knowledge can only have come from (what our client alleges to be unauthorised) access to the confines of his private property.

Our client also has concerns that information about him may have been obtained from unlawful access to his Spiderman phone, the use of surveillance, and/or the records of the responsible authorities that should not have been available to Mr Claus (namely, Little Timmy’s school reports and/or the diaries and correspondence of his legal guardians). You should be aware that he has instructed us to write to the Leveson Inquiry seeking the broadening of its scope to cover activities by bodies such as yourself and that Little Timmy will seek to appear before the Inquiry himself to tell his story.

Finally, our client believes that the information obtained by your client regarding Little Timmy has been or will be used for the purposes of a decision that significantly affects him (namely his eligibility to participate in your client’s annual present delivery programme) based on an automatic processing of that information to evaluate his conduct. We hereby give notice under section 12 of the Data Protection Act 1998 that no such decision may be made based solely on information processed by automatic means and, to the extent any such decision has already been taken, require that the decision is reconsidered or a new decision is taken based on alternative means.

We await your response.

Yours faithfully

SNOOPY, RED & BARON LLP

The Santa Claus Letters 6: He knows if you’ve been good or bad

BIZZLES LLP

Donner, Blitzen and Rudolf LLP
The Santa Claus Building
St Nicholas Street
The North Pole

19th December 2011

Dear Sirs

Re: Agreement between the Santa Claus Group and Little Timmy

We were most concerned to receive your letter of 16th December, in which you allege breach of warranty on the part of our client and indicate your client’s view that it is thereby relieved from its own obligations under the Agreement.

For the avoidance of doubt, our client denies any such breach. He contends that he has met the standard of behaviour required by clause 2.1 of the Agreement, which we would remind you was agreed to be “a reasonable level of behaviour with reference to the standards generally held to be acceptable for children of a similar age, nationality, and socio-economic and ethnic background.”

We would in particular direct your attention to the following evidence: that our client has performed his weekly washing up duties without substantial complaint; that he has tidied his room on at least 3 occasions during the relevant period; that he has at all material times refrained from profanity within the hearing of his mother; and that he has not pulled his sister’s hair on more than 10 occasions during the relevant period.

We therefore require that you confirm by return of post that you intend to perform your obligation to deliver the Presents between 11pm on 24th December and 5am on 25th December. Our client confirms that he will meet his own obligation to make mince pies and sherry available during that time.

In the event that we do not receive such confirmation, we put you on notice that our client intends to apply to the Court for specific performance of your client’s obligations and/or damages to the monetary value of the Presents.

We are also disturbed by your reference to a so-called “Naughty List”, on which you claim to have placed our client. You state that this is a register maintained by your client of all children who have not been “good” during the relevant year and who in consequence will not receive deliveries of presents from your client.

For the avoidance of doubt, we consider your placing of our client’s name on that list to be unwarranted and inappropriate. Further, our client would consider any publication of that list to be defamatory and damaging to his reputation with his peers, parents and teachers.

We therefore put you on notice that unless we receive an undertaking from you that your client will not make such publication we intend to seek an injunction to restrain it from doing so. We also seek confirmation that your client has removed Little Timmy’s name from the list.

We look forward to receiving an appropriate response from you by return of post.

Yours faithfully

for and on behalf of
Bizzles LLP

The Santa Claus Letters 5: The writ before Christmas

This instalment of The Santa Claus Letters has been kindly contributed by In House Hotshot, an in house IP lawyer, tweeter and blogger.

ELVISH IP

Patents * Trade Marks * Designs * Copyright

1 Polar Bear House, Santa Claus Lane, The North Pole

Head of Legal
Lapland Shopping Centre
St Nicholas Street
The North Pole
 

16 December 2011

Dear Sirs,

INTELLECTUAL PROPERTY INFRINGEMENT

We act on behalf of the Santa Claus Group, one of the world’s leading and most widely recognised semi-philanthropic gift manufacturers and sleigh-borne delivery companies. The business, which was previously known as Father Christmas Inc, has traded continually since 1458 and now consists of several group companies including Santa plc, Rudolph Logistics Limited and Elf Enterprises Limited. We are responsible for the protection of all Santa Claus Group brands throughout the world.

It has come to our attention that you have been using out client’s intellectual property in an unauthorised and infringing manner. If this use does not cease immediately we will have no option but to bring the infringements to an end by means of legal action.

TRADE MARK INFRINGEMENT

Our client is the owner of a number of registered and unregistered trade marks including, but not limited to:

  • “SANTA”, “SANTA CLAUS”, “HO! HO! HO!”, and the Jolly Fat Man in a Red Suit device, all in the name of Santa plc;
  • “RUDOLPH”, “RUDOLPH THE RED NOSED REINDEER” and the Red Nosed Reindeer device, all in the name of Rudolph Logistics Limited; and
  • “ELF MAGIC” and “MADE BY ELVES” in the name of Elf Enterprises Limited.

(Hereinafter the “Santa Claus Marks”)

These registrations cover a wide range of goods and services including, but not limited to:

  • Class 6 – Bells for animals, namely reindeer; animal collars (fur-lined);
  • Class 9 – Surveillance apparatus (sleep monitoring devices and good/bad distinction devices);
  • Class 12 – Sleighs;
  • Class 28 – Children’s toys;
  • Class 35 – Lists (compilation of); lists (checking of); lists (checking of for a second time);
  • Class 37 – Manufacture and repair of toys (specifically by means of elf-magic);
  • Class 39 – Arranging delivery of gifts (by air); delivery of gifts (by air); distribution of goods (mainly toys);
  • Class 41 – Entertainment and cultural activities, exhibiting of animals (namely reindeer);
  • Class 45 – Surveillance systems provided by elf magic; surveillance of children (for determination of behavioural nature and categorising on the St Nick Naughty/Nice scale).

(Together the “Santa Claus Goods and Services”).

We note that you have been using the Santa Claus Marks to promote your services at the Lapland Shopping Centre, St Nicholas Street, The North Pole. Your use extends to the use of “Santa”, “Santa Claus”, “Ho! Ho! Ho!” and the Jolly Fat Man in a Red Suit device to promote, inter alia, the distribution of toys, list-making, and the provision of entertainment and cultural activities, as well as related retail services.

At no time has our client authorised your use of the Santa Claus Marks in this way and as a result, your use amounts to an infringement of our client’s trade marks.

PASSING OFF

Your use of identical marks in relation to identical services also indicates that you deliberately intend to confuse the public and take advantage of our client’s goodwill and reputation by suggesting that the goods and services of the Lapland Shopping Centre are in some way connected with, or endorsed by, our client. This amounts to passing off.

In the event that you continue to use the infringing materials to promote your tawdry and non-magical retail services our client is likely to suffer a loss in mince pie, sherry and carrot revenue and will also suffer damage to its extensive (and expansive) reputation as both actual and potential customers may believe that they are dealing with our client or a business endorsed by them.

In addition, customers may not return to our client in the future as a result of any negative impressions of your business (including those related to kissing mothers under mistletoe). This is a particularly significant consideration in an already overcrowded present-provision industry where customer service, discretion and reliability are of utmost importance.

COPYRIGHT INFRINGEMENT

Our further investigation into your trade mark infringement, as set out above, has also led us to discover your infringement of our client’s copyright in their proprietary dramatic work (hereinafter the “Santa Claus Performance”). The Santa Claus Performance is a well-known dramatic work with the following distinguishing and internationally protected features:

  • Jolly male lead character in a red fur suit (see also trade mark infringement of jolly fat man in red suit device referred to above), with twinkling eyes, merry dimples, cheeks like roses and a nose like a cherry, droll little mouth drawn up like a bow, beard on chin as white as the snow, stump of a pipe held tight in his teeth (with optional smoke encircling head like a wreath depending on jurisdiction and related smoking legislation), round belly that shakes when he laughs (similar in nature to a bowl full of jelly) and ability to ascend and descend chimneys and similar flue-related items by means of laying his finger aside of his nose.
  • Scenery including grotto, stacks of presents, reindeer-driven sleigh;
  • Supporting cast of green and red-clad elves with pointy ears, long noses and pointy hats and shoes;
  • Script featuring key distinctive elements including “Ho! Ho! Ho!” (see also infringement of trade mark of “HO! HO! HO!” referred to above), “Happy Christmas” and “Happy Christmas to all and to all a goodnight”.

Your performance of “visit Santa’s Grotto” on level one of the Lapland Shopping Centre (opposite Elf-Pound Land) clearly constitutes the infringing acts of performing and making adaptations to our client’s original dramatic work, the Santa Claus Performance, without the authorisation of our client as the copyright owner.

In the circumstances, the infringing acts detailed above are unacceptable to our client and entitle us to commence infringement and passing off proceedings against you to seek, amongst other remedies, injunctions, compensation and legal costs.

In order to avoid proceedings for infringement you should provide the following undertakings:

  1. You will cease and desist from using the Santa Claus Marks in the course of trade in relation to the Santa Claus Goods and Services;
  2. You will cease and desist from passing off your services as connected to those of our client;
  3. You will cease and desist from performing the Santa Claus Performance or related dramatic works;
  4. You will refrain from using the Santa Claus Marks, performing the Santa Claus Performance and using any other intellectual property belonging to the Santa Claus Group in future, without our client’s prior written consent.

Please provide the undertakings by 5pm on Friday 23 December 2011. If the signed undertakings are not received by us by this date, we may commence infringement proceedings against you without further notice. In the meantime we reserve all of our client’s rights.

Yours Faithfully,

 

Elvish IP LLP

The Santa Claus Letters 4: Snow win, snow fee

WINTERVAL & SNOW LLP

Festive Claims Specialist

Personal Injury – Employment – PPI – Consumer Credit

“Where there’s grit there’s a writ”

The Santa Claus Group
The Santa Claus Building
St Nicholas Street
The North Pole

20th December 2011

 Dear Sirs

 MR BARRY CORDUROY

CLAIM FOR UNFAIR DISMISSAL

We act for Mr Barry Corduroy, a former employee of The Santa Claus Group (“the Group”). Mr Corduroy has instructed us to commence proceedings against the Group for unfair dismissal.

Mr Corduroy was employed by the Group in the capacity of Assistant Elf until 14th December. His duties involved, inter alia, toy making, present wrapping, stock picking, and carol singing.

On 1st December, Mr Corduroy was invited to a meeting with his supervisor, Mr Norman Grinch, and the head of HR, Mrs Barbara Blitzen. At that meeting, Mr Corduroy was informed that he was to be subject to disciplinary proceedings, on the grounds of poor performance, refusal to carry out reasonable instructions, and breach of confidence.

On 8th December, Mr Corduroy was invited to a further meeting with Mr Grinch and Mrs Blitzen. At that second meeting, he was informed by Mrs Blitzen that his employment was to be terminated with immediate effect. He was asked to hand in his security pass and pointy hat, and to leave the premises immediately.

It is Mr Corduroy’s contention that the allegations against him are demonstrably untrue and discriminatory, and that his dismissal on those grounds is therefore wholly unfair.

In particular, he responds to each of the allegations and intends to claim as follows:

1. Poor performance (1)

The allegation made against Mr Corduroy was that he failed to achieve the required level of quality and productivity in his role as Assistant Elf, and that he failed to improve in either respect despite being given additional coaching.

You will no doubt be aware that notwithstanding the description of his role, Mr Corduroy is not ethnically Elvish but is in fact a human. It is well known that humans lack certain magical skills that are characteristic of elves.

Despite this, Mr Corduory was subject in his work to the same targets as his Elvish colleagues in respect of toy-making and other tasks, despite lacking the magical skills necessary to achieve them.

It is our client’s contention that subjecting him to the same targets as his elvish colleagues, and disciplining him for failing to meet the same, amounted to unlawful discrimination on grounds of race.

2. Poor performance (2)

We are instructed that Mr Corduroy pointed out his disadvantage compared to his magical colleagues to his supervisor, Mr Grinch, on many occasions. Mr Corduory asked either for his targets to be relaxed or for technological aids to be provided to approximate the magical skills enjoyed by his colleagues.

Mr Grinch took no action in relation to these requests. Indeed, on several occasions documented by our client Mr Grinch told Mr Corduroy that if he felt unable to meet the required standard he should seek employment elsewhere.

Our client contends that his lack of magical skills amounts to a disability within the meaning of section 6 of the Equality Act 2010. The Group’s failure to either relax his targets or provide technological aids therefore amounted to a breach of the Group’s duty to make reasonable adjustments in respect of that disability.

3. Refusal to carry out reasonable instructions

Towards the end of November, Mr Corduroy was informed that he would be seconded to the Group’s Delivery Team during the period from 23rd December to 25th December inclusive. We understand that the function of this team is to effect the delivery, on an annual basis, of presents to various locations around the world on the evening of 24th December and the early morning of 25th December.

Mr Corduroy was reluctant to join the Delivery Team, because the work is physically demanding, involving as it does visits to upwards of 100 million households in the course of some 8 hours. It is also dangerous due to the speed of travel, the precarious nature of the various landing and take off areas, and the notoriously poor safety record of the Santa2000 Sleigh-Liner.

Mr Corduroy understandably felt that it would be more appropriate for the Delivery Team to be staffed entirely by elves, due to their aforementioned magical characteristics, and communicated this to Mr Grinch. Mr Grinch’s response was that Mr Corduory’s contract required him to undertake whatever duties were asked of him, at whatever location, and that he therefore had no choice in the matter.

It is Mr Corduroy’s contention that it is not reasonable for the relevant contractual provision to be interpreted and exercised in such a broad manner. It his further contention that the Group’s decision to do so is discriminatory for the reasons referred to at (1) above.

4. Breach of confidence

Mr Corduroy has for some time harboured doubts about the chief executive of the Group, Mr Santa Claus. We understand that Mr Claus is never seen at the premises of the Group, and that there is a persistent rumour circulating amongst the work force that he does not exist.

Given that the Group trades on the image of Mr Claus, and in particular his reputation as a kindly and beneficent old man, Mr Corduroy was understandably concerned that the children of the world are being misled by the Group’s advertising and other promotional activities. He attempted to raise this with Mr Grinch, but was rebuffed in dismissive terms.

This did not allay Mr Corduroy’s concerns, and he therefore contacted the Office of Fair Trading and the Advertising Standards Authority. It is our understanding that these organisations have written to the Group to request further information about its trading practices.

In the meeting of 1st December, Mrs Blitzen told Mr Corduroy that his action in contacting the aforementioned regulators was a breach of his contractual obligation of confidentiality to the Group. This was a major reason for his summary dismissal at the meeting of 8th December.

However, it is Mr Corduroy’s contention that in contacting the regulators he was making a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996. That makes the Group’s decision to dismiss him unfair by virtue of section 103A of the 1996 Act.

On the basis of the foregoing, it is clear that The Santa Claus Group has unfairly dismissed our client and has unlawfully discriminated against him. We therefore invite your proposals for compensating him in respect of his loss of earnings, and for injury to feelings.

We look forward to hearing from you in due course, and in any event within 14 days of the date of this letter.

Yours faithfully

 

WINTERVAL & SNOW LLP

The Santa Claus Letters 3: I’m dreaming of a woo Christmas

This letter (including errors of spelling and grammar) is derived from genuine Freeman on the Land websites and letters. All is true.

 Non-Negotiable

 Notice to Principle is Notice to Agent. Notice to Agent is Notice to Principle.

Notice to One is Notice to All

 © Timothy of the family: Taylor Authorised Representative for

TIMOTHY TAYLORTM and all derivatives thereof 

Donner, Blitzen and Rudolf LLP
TheSantaClausBuilding
St Nicholas Street
The North Pole

15th December 2011

WITHOUT PREJUDICE

Dear Interloper

Reference Number: LB/SC/30123456

Thank you for your recent contact. I do not understand the contents.

Your demand for mince pies and sherry on behalf of SANTA CLAUS is clearly fraudulent. As lawyers you are surely aware of the following principles of the common law:

1. The uppercase name TIMOTHY TAYLOR on your gift tags is not my name, but a ‘corporate entity’ or straw man. (Blacks Law Dictionary)

2. Your client SANTA CLAUS is a corporation and cannot enter into lawful contracts. The contract is therefore an unlawful contract as it is a unilateral agreement signed only by me. (Contract Law)

3. Your client SANTA CLAUS creates Presents out of thin air – he has no presents to give to children. (Fractional Reserve Gifting)

4. Your client has not provided any consideration under the contract, because the Presents are worthless ‘electronic items’ on computers. (Internet Shopping)

5. I am not lawfully bound to pay anything which is unsigned. (Bills of Exchange Act 1882)

You must therefore provide verification of your claim, including:

  • validation of the Presents: the actual accounting;
  • a lawful contract with valid consideration for the said mince pies and sherry;
  • a hand signed invoice in accordance with Bills of Exchange Act (1882); and
  • proof of agency.

You must provide this within ten (10) days from the above date so that I may settle any comestible obligation I might lawfully owe.

Your said failure to provide verification of your claim constitutes your agreement to the following terms: that you are a third party interloper; your claim is fraudulent; elves do not exist; you agree to pay all fee schedules; and that you will no longer pursue this matter any further.

If you sell the alleged liability, and/or appoint my parents to act on your behalf on this matter you will have broken our agreement and you agree to pay the following fee schedule:

  • £21000 for dishonouring our agreement;
  • £1000 per hour or part of it of authorised representatives time nunc pro tunc;
  • £1000 per recorded delivery or any other form of response nunc pro tunc
  • £100 per contact by letter or phone payable in advance.

In addition, you and your client SANTA CLAUS have referred to me as Mr Timothy Taylor. I specifically demand that you do not refer to me as Mr or any Title, which is a legal fiction and is not me. Breach of this condition requires you to pay £1000000 for each unauthorised use.

If you have advised your client properly SANTA CLAUS should be aware that it is a common law offence to wilfully attempt to enforce jurisdiction of a man using a legal fiction. Therefore, this amounts to proof of a wilful criminal act.

The only other possibility is that SANTA CLAUS does not exist. If this is the case, then you are attempting to commit fraud on the children of the world.

I therefore demand that this malicious and frivolous activity of exchanging so-called Presents in return for mince pies cease and desist with immediate effect, and that you send me written confirmation of the same along with all of the Presents.

Yours without ill will, frivolity, vexation and malice.

Yours sincerely

By: Sovereign Timothy of the family:Taylor; living breathing human soul.

 No assured value, No liability. Errors & Omissions Excepted. All Rights Reserved.

WITHOUT PREJUDICE – WITHOUT RECOURSE – NON-ASSUMPSIT 

The Santa Claus Letters 2: Elf ‘n’ safety

DONNER, BLITZEN AND RUDOLF LLP

Bizzles LLP
BizzleTowers
BizzlePlaza
Leeds

13th December 2011

Dear Sirs

Re: Agreement between the Santa Claus Group and Little Timmy

Thank you for your letter of 9th December. We will take instructions from our client and revert to you with a revised draft.

In the meantime, we are instructed to obtain certain information from you by way of due diligence. We would accordingly be grateful if you would provide answers to the following questions:

1. Please identify the person responsible for health and safety matters at the address to which the Presents are to be delivered (hereinafter referred to as “the Premises”). Your client should note that the designation of such a person does not relieve any person, including without limitation Little Timmy and his parents, guardian, siblings or imaginary friends (if any), from their statutory responsibilities.

2. Please provide a plan of the Premises showing the following clearly marked:

  • the location and extent of the designated sleigh landing and take off;
  • a point of access and egress large enough to accommodate one man of substantial build together with one sack containing the Presents;
  • the internal location at which the Presents are to be delivered;
  • fire exits.

3. Please confirm that the landing and take off area is of sufficient extent to accommodate one sleigh (approximately 12′ long) and 6 reindeer, with turning circle. Please also confirm that this area will be free of all obstacles, snow etc at all relevant times.

4. If the point of access and egress is to be a chimney, please confirm the type of fire installed (if any) and provide assurances from your client that it will not be lit between 11pm on 24th December and 5am on 25th December. We would draw your attention in this context to clause 7.1 of the Agreement regarding liability for personal injury and damage to beard and costume.

5. Notwithstanding that our client does not accept responsibility or liability for use of the Presents (see clause 7.5 of the Agreement), we are required under the provisions of the Consumer Protection (Seasonal Gifts) Regulations 2003 to ensure that our customers meet any age criteria specified in respect of items to be delivered. To this end, please provide a certified copy of Little Timmy’s birth certificate.

6. Please provide a copy of the following:

  • a current fire safety certificate for the Premises;
  • your client’s public liability insurance policy;
  • if the landing area is to be the roof of the Premises, a surveyor’s report confirming that such roof is capable of bearing the required load (approx. 3.5 tons including reindeer and Presents).

7. If the landing area is not to be the roof of the Premises, but access and egress is to be via a chimney, please confirm that a ladder capable of bearing the required weight (approx. 18 stone together with the weight of the Presents ordered) will be supplied. Please also provide details of how any such ladder will be fixed to the exterior wall of the Premises.

8. Please provide a copy of your most recent risk assessment undertaken for the Premises, and confirm that relevant areas will be checked regularly to ensure that they are free of hazards including but not limited to chemicals, explosive materials, and untidied toys.

9. Please provide details of any relevant medical conditions suffered by your client. It is particularly important that you advise us in advance regarding any known allergy to reindeer, elves, or beards.

10. Assuming that your client is a minor, please provide a form of Parent Company Guarantee (or the equivalent for any legal guardian who is not a parent) under which the relevant person will undertake to provide the relevant mince pies etc in the event of your client’s breach.

We would also remind your client that under the terms of the Agreement he is responsible for the security and safety of the Premises and the delivery, including where appropriate a police presence and the attendance of the St Johns Ambulance service.

You will appreciate that our client’s ability to effect a safe and timely delivery of the Presents depends on satisfactory answers to the foregoing questions, and we therefore look forward to receiving your full response by return of post.

Yours faithfully

for and on behalf of
Donner, Blitzen and Rudolf LLP

The Santa Claus Letters 1: A christmas contract

BIZZLES LLP

Donner, Blitzen and Rudolf LLP
The Santa Claus Building
St Nicholas Street
The North Pole

9th December 2011

Dear Sirs

Re:      Agreement for the Delivery of Presents

We refer to your letter of 2nd December, and its enclosed draft greement between the Santa Claus Group and our client Mr Timothy Taylor (referred to in the Agreement as “Little Timmy”).

Having taken instructions from our client, we have the following observations and comments on your draft:

1. In the definition of “the Presents” at clause 1.1, please add the following items: one Lego Ninjago Fire Temple set; one Nerf Vortex Nitron Blaster; one Tech Lightsaber set; two ponies (any breed); one signed photograph of Karen Gillan. A schedule providing further details of these items, and outlets from where they might be purchased, is enclosed.

2. In the same definition, please delete the following items: one Marks and Spencers pyjama set in baby blue; one Beano annual; one orange.

3. At clause 2.1 your requirement that our client “warrants represents and undertakes that he has been good during the course of the year” lacks certainty and arguably imposes an unreasonable standard of behaviour on our client. We suggest that this be replaced by a warranty that our client has “at all material times achieved a reasonable level of behaviour with reference to the standards generally held to be acceptable for children of a similar age, nationality, and socio-economic and ethnic background.”

4. We note that at clause 3.2 you have stated the Price to be “two packets of Duchy Originals mince pies and one bottle of Pol Roger with four glasses.” We assume that this is an error, and request that you reinsert the Price specified in the earlier Heads of Agreement of “two mince pies (Tesco own-brand) and one small glass of Bristol Cream sherry.”

5. Your clause 4.2, which states that “Time shall not be of the essence in relation to this Agreement”, is clearly inappropriate in view of the substantial loss and distress that our client would suffer in the event of late delivery of the Presents. We therefore propose that a schedule of compensatory service credits be appended to the Agreement to apply in the event of your client’s breach.

6. We would draw your attention to the provisions of The Consumer Protection (Distance Selling) Regulations 2000 (as amended), and propose that a new clause 6.5 be inserted to provide for the return of the Presents within the statutory cooling off period. A rider to this effect is attached hereto for your consideration.

 7. Your proposed clause 8, which provides for the subcontracting of the Santa Claus Group’s obligations under the Agreement to our client’s parents or guardian, is clearly unacceptable. Our client is entering into the Agreement in reliance on the Santa Claus Group’s representations as to the existence of its founder and chief executive, Mr Claus, and it is of the essence that their obligations are performed by Mr Claus personally.

8. We also find your proposed force majeure provisions (at clause 9) to be inappropriate. The Santa Claus Group has for a number of years promoted and traded on its ability to deliver to customers in all conditions, and we therefore do not accept that your client should be relieved of its obligations in the event of snow or other adverse weather. We therefore propose that this provision be restricted to the following occurrences: volcanic ash clouds; governmental no fly orders; elf flu; and Acts of God.

We also note that our client has expressed some scepticism regarding the ability of the Santa Claus Group to meet its obligations under the Agreement in view of the large number other similar contracts that it enters into at this time of year, all of which must contain similar obligations that must be performed within a short period of time. We would be grateful, therefore, if you could provide a detailed specification of how your client intends to perform its obligations, together with a copy of its business continuity plan and details of any insurances that it holds that may be relevant to the services to be provided.

We look forward to receiving the same, and a revised version of the draft Agreement, at your earliest convenience.

Yours faithfully

For and on behalf of
Bizzles LLP

Tis the season…

As an early Christmas present for my lovely readers (and the other ones as well), here’s a special appearance by a fellow in houser. My guest wishes to remain anonymous – I wonder why?

Tis’ the season to be jolly…or alternatively the start of the messages from well meaning HR companies and law firms on 101 ways not to enjoy the festivities.  Pinsent Mason’s Out-Law.com was one of the first I saw with Top 10 Tips about the Office based party.

When I look at the list of subjects (dancing on tables, misuse of company equipment and mistletoe, breach of electrical regulations, drugs etc) I start to think that somebody somewhere in private practice might be having a better party experience than me…but with all that ‘advice’ out there and corporate responsibility laying a heavy burden on my shoulders how do I have fun at a Christmas party as an in-houser?  A lonely, on my own in-houser with no team; everybody and nobody’s friend.  Is it time to bust down those virtual walls and truly integrate with the sales force?  Can I really drop my risk based assessments and go wild in the company of the IT development team?  Is it time to let go of structured tailoring, lighten up and struck my funky stuff on the dance floor (reception area).  Maybe this year will be my moment…maybe I’ll finally become ‘one of them’….

Early after the ‘End of the Year Party’ invite the Grinch puts it out there that he’s not going to attend.  I know his game; I’ve seen it before; he wants people to beg.  Well, sorry mate but this year is not going to happen.  You see I’m all for inclusivity which includes including those who don’t want to be included in my new approach:  not interested?  Alrighty.

C’mon we’re all grown-up’s so let’s prove it with this year’s Secret Santa which is not all about the money, money, money and set an unacceptably low financial threshold that allows nothing but total naffness.  Maybe I should even eliminate the randomness of the exercise and allow staff members to offer me sums of money/chocolate/wine to ensure they get the recipient they really want.  Whether it’s a gift of love, hate, passion or derision nothing says it better than a £5 gift.  Oh, and if it’s a sex toy – make sure you include batteries.  The HR team enjoy nothing better than a good post-party storm in a teacup sorry, grievance.  I will henceforth name the event ‘Santa’s Stich-Up’.

Free Bar are just great things aren’t they?  It gives us all the opportunity to sample (and leave) every type of optic that you wouldn’t do if you were paying yourself. And then there are the liqueurs.  Who knew that crème de menthe chasers after champagne were such a good thing?  I’ll drop my concern that people will drink until they are senseless and place no value on what they are consuming or wasting: “Boss your staff will think you are awesome”.  Well, until they wake up the next morning with the hangover from hell and work out that despite the fact that you paid for the drinks all last night they still hate you and their job.  Still, free booze night = flexible brownie points. I will note that a free bar is not necessarily the route to long term commitment and loyalty from your staff but, speaking as an employee myself, I think it’s a start.  Cheers!

Protect the vulnerable and keep an eye out for the office junior?  Sorry EU based age discrimination legislation prevents us from having an office junior so they are no longer identifiable.  Seriously though even with my new found freedom I’ll be watching out for the young ones.  Those first ‘end of year’ parties are minefields.  Who doesn’t have a story to tell of things that they have said/done/watched/ignored/laughed/cried at and then regretted forever, ever, ever?  Well, I have loads and I am going to force them to sit in the toilets with me while I force-feed them the benefit of my experience.  I can’t prevent them making their own fledgling party based mistakes but I can drone on until hopefully they sober up and decide to go home early or chose to (who am I kidding) ignore me and go right ahead.  You see, having decided to integrate I’m now one of them right?

In advance of the party what kind of person would put out a notice about misuse of company equipment and ‘ban’ dancing on tables and mounting the photocopier?  Frankly, in the heels I intend wearing there is little chance of me making it to the tables in one piece but despite the lack of rigidity or strength in the table design I may just throw caution to the wind.  Granted I know that some of the tables are so flexible they barely hold a computer but what price my dignity?  I don’t have a long held desire to mount the photocopier but appreciate that others may.  After all it’s a sexy bit of kit and it’s not every day of the week that you get to pin a picture of your backside to the office window of the guy who routinely refuses your expenses.  The CSR policy can still be met with a simple sign “do you need to print this document” and reminding employees of the consequences of paper waste on the environment.  Or alternatively, but where’s the fun: turn it off.  Anyone drunk enough to consider such behaviour will be flummoxed when the green button doesn’t achieve the desired results.

But even with my new found liberal approach to the celebrations there are rules that I am sticking to and will be openly promoting but rewording as I don’t want to be considered “anti-fun”:

1.  Best piece of advice I ever got on the subject of office sex:  “Don’t f%#k the flock”.  End of.  I will also recommend that people leave with the person they came with.  It helps for inter-office harmony. Those 3 way love triangle thingies are tricky and lead to migraines, paperwork and office/team reorganisations.

2. Drugs are bad kids.  So, unless you want to see your boss carted off to the local nick for allowing the toilets to be used as a drugs den and getting a rep for becoming the local drug-lord don’t do it.  This kind of thing is not good for the company’s rep. Have some respect and keep your job.  Recreational drugs are for recreation time.  The office party ain’t recreation its hard work!

3. The Walk of Shame.  Unless you’re in the habit of not caring what people think and have heaps of money that you can afford to be unemployed don’t be a slave to bad behaviour if you don’t want to walk that walk the day after the night before.  And let’s not forget co-workers and bosses have long, long memories after all something has to keep them going for the next 9 months until the countdown for the next office do starts all over again…

I love it when a debt management plan comes together

Last week, the House of Commons held a debate on debt advice and debt management (starting at 3.21pm on that link). This was reported by Credit Today under the headline “MPs urge clampdown on consumer credit.” 

Tracey Crouch, Conservative MP for Chatham and Aylesford, spoke at length on debt management companies. Her view (which is well put) is that commercial debt management companies push people who are struggling with debt into inappropriate debt management plans with high fees, without advising them about alternatives such as bankruptcy. 

For those who don’t deal with debt, or who have been lucky (or sensible) enough not to get into it, a debt management plan is an arrangement whereby a debtor pays a consolidated monthly sum to a third party who distributes it to creditors in proportion to the size of the debts owed. If the third party is operating on a commercial basis (there are non-profit providers), it takes a fee out of the consolidated amount. 

The most obvious thing about this is that the commercial providers are taking a fee for something that the debtor, albeit with some effort, could do for themselves. Lenders that have signed up to industry guidelines such as the Lending Code are supposed to deal fairly with debtors who are in financial difficulties and, if they follow through on that promise, will accept reduced payments at least on a temporary basis. 

In practice, it isn’t always that easy. Lenders will send an income and expenditure form for the debtor to complete, and it is not unknown for wrangling to ensue about specific expenditures (do you really need Sky Sports?) and the exact proportion in which each creditor should be paid. 

Then there is the mentality that develops in many people who collect debt for a living (including me, a hundred years or so ago). A certain proportion of the hard luck stories that every collector hears aren’t exactly a full and frank account, and the scepticism that this naturally breeds can be reinforced (in a minority of cases, I should stress) by poorly-designed collection processes and targets. 

This can make dealing with creditors on your own behalf quite a battle, especially if you have quite a few to talk to. When you consider that many people who get into debt problems do so because of their reluctance to confront their situation, you can see why some debtors need a little help. 

This should be where the non-profit debt advisors, chiefly the Consumer Credit Counselling Service and the Citizen’s Advice Bureau, come in. They provide independent advice on dealing with debt, including on insolvency options, and can liaise with creditors on a debtor’s behalf. 

But they are, to put it mildly, somewhat stretched. The CCCS is funded by lenders, and has a notorious backlog (I have no idea if the two things are linked), and the CAB is suffering its own, Government-inflicted funding worries

Hence the gap in the market for commercial debt management companies. Because they take a fee for debt management plans and individual voluntary arrangements, but cannot for bankruptcies or Debt Relief Orders (pdf), it is clear that they will promote the former over the latter. 

Which brings us to the second problem, identified by Tracey Crouch in her Commons speech: what’s in the best interests of the debt management company isn’t always in the best interests of the debtor. It is not, in other words, impartial advice. 

This matters for two reasons. First, some debtors for whom it might be appropriate to apply for bankruptcy or a Debt Relief Order (which would typically lead to debts being expunged sooner than under a debt management plan) will not receive advice on the pros and cons of the former and the criteria for obtaining the latter. 

Second, the fee taken by the debt management company reduces the amount available for distribution to creditors. Boo for creditors, for sure, but this can also substantially increase the time that it takes the debtor to get clear of their debts. 

You can add to this the relaxed approach to administration that some debt management companies display. It is not unheard of for payments to be delayed for months, and for requests for income and expenditure reviews to go unheeded. 

Given that under Office of Fair Trading guidance creditors are not supposed to contact represented debtors directly, it’s possible for several months to go by before the debtor becomes aware of the problem. This can lead to additional interest and charges being incurred, which just adds to the time that it takes to pay off the debt. 

With all these problems, it’s not surprising that MPs and regulators are piling in. As well as last week’s debate, the Select Committee on Business, Innovation and Skills is undertaking an inquiry into the issue, and following regulatory action against 50 firms the Office of Fair Trading issued revised guidance for the sector earlier this year. 

It is, of course, always amusing to hear that Conservative MPs are shocked (shocked!) to find that businesses operating on a commercial basis are putting profit ahead of consumer interests. Perhaps we could rebrand the good type of regulation to distinguish it from that horrible red tape that stifles growth – baby blue tape, anyone? 

Cheap shots aside, there is no doubt that Tracey Crouch, at least, is sincere in her views. David Allen Green has drawn my attention to this blog from earlier this year, in which she writes honestly about how her own struggles with debt inform her campaigning on this issue. 

But as it happens, and as much as I wonder whether she and some of her colleagues are in the wrong party, I don’t quite agree with her on the remedy for this problem. I’m happy enough to see debt management companies regulated further, but the consumer credit sector is fairly highly regulated as it is and yet it’s not exactly free of bad behaviour. 

What might work is for the Government to properly fund, or to require lenders to properly fund, the CCCS and the CAB so that they can both advertise their services effectively and handle the resulting caseload. Then consumers will have access to free and impartial advice, and there will be much less incentive to resort to fee charging services. 

This might even be a policy that would benefit both business (through quicker repayments and lower defaults) and consumers, and might have the happy effect of reducing the amount of private debt at large. Given how often private debt seems to become public debt these days, that seems like a good thing.

Gosh, maybe Tracey Crouch and I should swap parties?*

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*That’s a joke. If I ever display any Conservative tendencies again, you can shoot me.

My wife is a parasite

My wife is a parasite. An unproductive drain on our national resources. A selfish and irresponsible extremist, holding the country to ransom. 

My best friend is also a parasite. So are my sisters, and my closest colleague’s wife. And so are more than half of my employer’s clients. 

All of these people are parasites, apparently, because they work in the public sector. Some of them (including my wife) were on strike on Wednesday, in a dispute about pension rights. 

If we follow some of the commentary on Twitter and elsewhere, we are evidently supposed to understand this as a giant protection racket: “Nice country you’ve got there. Be a shame if something happened to it…” Demanding pensions with menaces, if you like. 

Now, I don’t do politics on here (very much). You can take one side or the other on the question of pensions reform, or the size of the public sector; for the purposes of this post at least, I don’t care very much. 

What I do care about is the casual way in which abusive terms are applied to a group of people, and how this distorts and displaces what should be a debate about serious economic and social issues. 

About two million people were on strike on Wednesday. That’s about 10% of the working population of the UK, with many more directly or indirectly employed in the public sector who were not involved on the day. 

In other words, these are your brothers, sisters, husbands, wives, children and friends. If you know more than a couple of people, you know someone who works in the public sector. 

The vast majority of these people work in jobs that are necessary. You can have a debate about whether public or private provision is best for any particular job (or for all jobs), but either way there are (by and large) going to be doctors, teachers, firemen and whatever else. 

The people who do these jobs do not themselves decide whether the job they do is in the public or private sector. They do the job that they do because they have a vocation, or a valuable skill, or for the money, or for whatever other motivation people have to do any particular job. 

Now, some public sector workers are members of unions. So are some private sector workers. This is intended as a counterbalance to the power of employers (whether public or private) over their employees. 

That counterbalance works through collective bargaining, through advocacy, and (if other methods have not been successful) through the withholding of labour. 

So sometimes, where an employer wishes to take action that a union (as the representative of its members) does not agree with, union members may be balloted on strike action. This is the case in both the public and private sectors; even barristers threaten to withhold their labour on occasion

Yes, strikes are disruptive – that would rather be the point of striking. And, yes, they are often motivated by self-interest – that would be the same self-interest that we are all supposed to display as rational economic actors, and (if we are making student union debating points) the same self-interest that we display when we complain about disruption caused by strikes. 

And, crucially, all of this is lawful. You are allowed to join a union, and, if you meet the criteria and go through the (more onerous than it once was) process, you are allowed to strike. 

It is also democratic, in that there is a free choice of whether or not to join a union, and in the sense that unions articulate and advocate the collective view of their members. And, of course, in the sense that a strike is lawful only if members have voted for it. 

If you don’t agree that this is appropriate, fine – it’s a valid point for debate. Lobby for a change in the law, and vote Conservative; it’s your right to do so. 

But demeaning people (people that you know, almost certainly) as “parasites” for exercising their lawful rights is not a debate. Calling people selfish because they have a democratic means of expressing their view is not a debate. 

So perhaps we could remember that we are talking about real people, doing real jobs, when we discuss the rights and wrongs of strikes, and the proper scope of the public sector. And perhaps we could afford these real people the respect that we would demand for ourselves were it our jobs and our interests at stake. 

And if you’re not swayed, please feel free to come and call Mrs Bizzle a parasite to her face. She is from Wakefield, and will kick your ass. 

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Postscript: This blog is not about Jeremy Clarkson. In context, his “joke” was clearly about the BBC’s need for balance, and in any event he is not to be taken seriously.