Stacking Shelves vs Saving Lives

There is this common perception, no matter how much some of us may try to fight it that one job is better than another; that somehow the way in which someone chooses to earn their honest living is subject to some sort of hierarchy of respectfulness. It’s all around us and sometimes in the most subtle of contexts. 

I contend this is utter crap.

Our society is full of snobbery and hypocrisy. Not only do we sit and watch X Factor judges commend their contestants and how they will never have to go back to “shelf stacking in Tesco” but simultaneously we judge those that sit on their back sides all day claiming benefits.

Though the job market is poor, it should only highlight the importance of showcasing all types of employment on an equal footing. This will remove the superiority complexes earned by no one and encourage more people into jobs.

Many are depressed in their jobs; they are unhappy that they are working in McDonalds; they are unhappy they didn’t secure that record deal, get that traineeship or get that place in medical school.

But, why? A job is a job. I concede that some level of satisfaction is required within a job but why be upset that you have a job? In this economic climate, be proud. Be proud that you have beaten the crisis and still earning a living. Be proud you are choosing not to live on benefits. Be proud that you haven’t given up on yourself or those around you. Be proud that you are putting your snobbery and hypocrisy aside in favour of this honest living. And aside from the economic climate – still be proud.

We can’t all be lawyers, dentists, doctors and frankly the world would be boring as hell if it was and we can’t all be interested in that either. As clichéd as it sounds – we need the little screws that hold the desk together. That’s not to “belittle” these jobs in any way. You’ll find the little screws are the least substantial element of the desk but the most integral part as well. This is directly applicable to our society today.

In the end of the day, job is a means by which you can then enjoy the more important parts of your life. Like meeting friends down in the pub; taking your better half out to dinner; buying your kid that extra special Christmas present. When your job becomes the most important part of your life; you might be losing sight of what truly matters.

We all half heartedly admit that the people that collect our rubbish or serve us in bars make the world go around but do we act on it? Do we actually believe this popularly said concept? When someone tells you they left school at 16 and are working in Tesco – do you automatically assume they are a failure?

Maybe you don’t to this extreme extent but even subtle comments can verify this deep seated perception. We like to believe that we cover it up with clever sayings but the real challenge is to believe it.

So I challenge you. Dump the perception in favour of the things that really matter. There is no need for it and frankly no room.

And let's face it, we all know the person giving us a BigMac in McDonald makes us happier than the Doctor that tells us we have crabs or the Lawyer that charges us £2000 to write a letter.

Cheques in “full and final” settlement – take the money?

An increasing number of cases deal with the attempts of debtors to avoid or decrease debts through use of these types of cheques. There is a dilemma, especially if the dispute has been ongoing for a considerable period of time, to cash the cheque and pursue, anyway, for the remaining amount. But the trouble is by cashing the cheque, are you then binding yourself to the agreement that the cheque provided is for full and final settlement and therefore barring yourself from further claim?

The case law certainly suggests, that like all things in law that: “it depends”. It depends, very much, on the circumstances, background and the intentions of each party. In other words, the courts have been fairly reluctant to put into place any concrete rules.

The major difference in treatment in these cases or at least probably the only one worth mentioning is when a debt is disputed or undisputed.

The debt was undisputed in the case of D and C Builders v Rees, where the plaintiff was entitled to recover the balance of the sum owed as the cheque offered in “settlement” was nothing other than a means by which the claimant sought to avoid the price of the works carried out because they had been carried out with no complaints.

Another factor in determining whether cashing such a cheque can be binding is time. In Bracken and Another v Billinghurst, the time taken for the creditors to indicate their non acceptance of the cheque as full and final settlement proved a deciding factor. The courts felt that too long a period of time had lapsed without having informed the defendants of their intentions and therefore deemed the acceptance of the cheque in full settlement.

In a disputed debt claim, reliance is placed on the case of Day v McLea, whereby an agreement to accept a cheque in full and final settlement will be heavily based upon the conduct of the creditor. So in Inland Revenue Commissioners v Fry, where the creditors had no idea that the cheque they received was in consideration of full and final settlement were entitled to pursue for the remaining balance.

There are two options for the creditor with the main lesson to be learned from case law is clarity. If you are explicitly clear (when banking the cheque) with your intentions of non acceptance, don’t dilly or dally, do nothing that could be construed as acceptance and notify the debtor straight away of your disagreement to the lesser amount - do this and the courts will likely look upon this favourably on the basis that there has been no consensus in idem to constitute a binding agreement. At the very least immediately write to the other party that you are rejecting the cheque as full and final settlement but will be cashing the cheque as part payment. Be sure to keep a copy of this letter and send by reliable source to the correct address. The temptation is, understandably, high to bank the cheque and pursue for the remaining balance but alongside the requirement of clarity; it may be that the best solution would be to reject the cheque altogether and advise the debtor that full payment is to be made within a short period of time, failing which will result in court proceedings. This way, the debtor has no claim against you.

The Land Registration Act 2012

The Land Registration etc Bill introduced by John Swinney MSP on the 1st December 2011 and receiving Royal Assent on the 10 July 2012 has sought to reform and restate the current law on registration of rights to land, therefore full enactment will cause the replacement and repeal of the Land Registration Act 1979. Although asserted by the Scottish Law Commission that the changes to be introduced were evolutionary; conveyancers have regarded it revolutionary with the proposals set to make a big improvement to the ease of land registration. The main objective of this new legislation is namely to make conveyancing transactions a lot simpler.

Modernising Conveyancing

The Act will seek to bring conveyancing in line with the 21st century in two ways.

First of all, with amendments to the Requirements of Writing (Scotland) Act 1995, the position will enable property transactions to be negotiated, signed an registered electronically making it easier, quicker and therefore cheaper to carry out overall.

Secondly, the Act will seek to recognise one Land Register. Presently, only around 60% of property titles are registered in the land register. Recognising one register means the title and a plan of its boundaries will be available to view online making it easier and quicker for purchasers to research prospective properties. This is a huge improvement as large parts of rural Scotland still rely on written descriptions of the property require an extra degree of diligence making the process lengthier and thereby more expensive. This was one of the primary goals of the legislation and its enactment will see to the closure of the Register of Sasines, rendering a recording on or after the prescribed day as ineffective - section 48 of the new act. In addition to this the law will also recognise a single title map of the whole of Scotland namely Cadastral.

Race to the Register

Many will complain of the unfairness, uncertainty and inadequacies attached to this famous "race to the register" concept in Scotland. The Act will revolutionise this area by bringing it in line with England. Presently, in Scotland to register a title, it is to be lodged with the land register therefore it is not an impossibility that a party could lose his or her title if someone else manages to register a competing title first. However, in England, the position is more certain. There, parties have a "priority period" which is a period of time that can be reserved in advance during which no one else may register a competing title. Similarly, Scottish Law Commission's proposed solution to this problem is to introduce "advance notices" which will have a 35 day effective period. Sections 56-64 deal with this area (part 4). This will afford buyers better protection.

Rectifying Inaccuracies

The Scottish Law Commission recognised that the current law placed "obstacles" in the way of rectifying the Register even if the mistake is of a relatively minor value. S.9 of the old Act makes it overly complicated to rectify inaccuracies with rules on the circumstances in which the Keeper is able to rectify (s.9(3)). Section 9(2) implies that the Lands Tribunal is required to make such an order in respect of rectification. Part 8 of the new Act, however, seeks to do away with such complexities and deals with inaccuracies in two ways. First of all, the definition of "inaccuracy" has been tightened in section 65 to mean when something is misstated in law or in fact; omits anything required, by or under an enactment, to be included in it; or includes anything which is not permitted by or under enactment therefore sieving out any minor deficiencies and section 80 makes provision for only "manifest" inaccuracies and the procedure only involves including in the archive record a copy of any document which discloses, or contributes to disclosing, the inaccuracy and give notice to any person that might be materially affected. Inaccuracies in provisional registration are dealt with simply in s.81 where the Keeper may rectify the register if all those affected consent. Again, what can be evidently drawn from this is the Scottish Law Commission's desire to promote efficiency within these types of transactions; a desire undoubtedly shared.

The Heartbreak of the Recession

I don't think anything can prepare you.

I think the majority of us have sat from our cushioned lives and only heard on the news or through friend's of friends about the effects of the recession. We probably routinely or robotically exclaimed "that's a shame"; some of us probably even meant it.

There will also be many of us who will have felt the effects first hand - have been made redundant once or twice or had to give up their homes; have witnessed or suffered the pains of it all.

I was in court listening in on some procedural hearings once again. Although aware of the detrimental impact the recession has had; I naively thought that I could look at the hearing as a "case file" and ignore the emotional attachments behind it. That's all fair and well in the office but step out from behind your desk and march on down to court and face the person you are extracting from their homes. Their homes that they could once, very easily, afford to pay for. As each month passes with them still unable to find other means of income; the interest builds, leaving them worse and worse off. It's like a never ending cycle of debt; each time you go around, the debt increasing.

At the office we complain of the people behind the late payments; behind the several excuses; behind the impossibilities of getting a hold of them on the phone - we sighed and huffed and puffed at their pathetic excuses; their laziness at not getting another job and their rudeness at not getting back in touch. So we threaten them with court action and we see it through - we take them to court; armed and ready to blast them for their incapabilities.

But face to face in the court in front of the Sheriff, you cannot help but feel a lump in your throat and  and a tug on the heart string as you see respectable people nervously face the Sheriff with their excuses. Perfectly good excuses. Excuses like, "I was made redundant; found another job but was made redundant again"; "I have a wife and three kids, we had other stuff to pay for this month"; "I just can't afford it anymore; I can't find a job".

Once faced with the reality of what you are doing - you can't help but hate yourself at least a little bit. I don't blame the job; I don't even blame reality. I blame our mentality; mine as well and it was a solid reminder to me that there are people taking the recession perhaps a lot harder than I am. Let it be a reminder to you all as well. Be grateful for what you have.

Lawyers - Have we neglected our purpose?

Presently, I am doing a summer placement with a firm in Glasgow and I took the opportunity to accompany the senior trainee to court this morning for some procedural hearings. Upon her case being called, a nervous but gutsy woman stood tall and walked to the desk. With a clear but shakey voice  she asked for a continuation on the basis that she could not find legal representation because her case was not worthy of legal aid and she could not afford to appoint a solicitor herself. She had approached 8 different firms that had all turned her down.

Although aware that the firms themselves cannot be blamed for this injustice, we have to question our ability, as ambassadors of the law, if we are doing the right thing by only protecting the insanely rich or those that are set to make an insane claim. My opinion is clear: law is a mechanism whereby we assert a certain standard of behaviour across our country. When that behaviour is not adhered to, there is, more likely than not, an injustice. As ambassadors, our job is to make right that injustice no matter how small or big the case is or how rich or poor the person is. The Sheriff somewhat remorsefully advised the woman that if she could not find representation by the next court date that she would have to represent herself. If she wants to see her injustice put right; she has no choice in the matter. Where is the justice in that? This will clearly have some sort of detrimental impact on her chances of being successful.

I know very little of her circumstances and it may very well be that her claim is vexatious but from what I heard the message was evident and disturbing. An injured person can walk into hospital and expect to be treated. No matter if that person is a terrorist/murderer/rapist/child/mother/ned or otherwise. Likewise, a person wronged should be able to walk into court with legal representation. Doctors can do their jobs – why can’t we?

Ignorantia Juris Non Excusat Reconsiderd.

A few months ago, a boy was labelled a racist for enquiring if a school mate was brown because he came from Africa. This boy was 7.

Although in agreement that racism is a form of abuse that has to be heavily minimised and stamped upon, is it really legitimate to categorize this young boy’s curiosity racism?

Perhaps it is too pedantic to look to legal maxims as an illustrative point in this matter taking into consideration that the boy was only 7 and no charges were brought but it got me thinking. If we are to assume for the time being that the boy was 17; looking strictly at the maxim: ignorance is not an excuse; this comment would be deemed an offense and possible charges could be brought. There does not seem to be any indication of a malicious intent. A boy at 17 would be held to possess a more in depth knowledge of what is racist or not, but this is purely assumption. An understanding of such concepts as racism or disability will mostly come from experiences. A child unexposed to such matters will be more likely to say something offensive and perhaps even, unintentionally. Is it fair for a child or in fact anyone that is ignorant to breaking the law to be guilty if they do not know what they are doing is wrong?

I realise that this maxim serves a fundamental function within the legal system. It encourages knowledge in the law; an understanding of it and therefore a stricter application leading to more equitable decisions and therefore transparency of the law. All very important. I don’t dispute that. But there is food for thought in whether applying this maxim religiously is in fact serving the best interests of the public. It is a tall feat to ask of lawyers never mind of the general public to remain up to date in an ever changing and evolving society with laws being proposed and passed most days. It is the job of the lawyer to remain up to date, but is it the job of the average person? Is it the job of the lawyer to educate them? It seems that the Government may be navigating cleverly around the colossal task of providing a system whereby before anyone may be subjected to a law; they must be made aware and understand such a law failing which would result in new laws probably never being passed. So it is understandable, but is it right?

It is worth considering that with this maxim cemented within our legal system, we are bound by any laws that Parliament seek to pass; anything at all despite not knowing of it or understanding it. I find that thoroughly disconcerting. I guess we should all have studied Law.

I can’t help but think, though more difficult, looking to intent in circumstances such as this would serve a better picture of justice than wholly relying on “ignorance”. Quoting from the infamous case of Cadder, Lord Hope said “... there is no room... for a decision that favours the status quo simply on grounds of expediency.” Although this is in reference to another matter altogether, the same thought process should be applied to that of this maxim. Simply because it has been rooted in our legal system for years and that the alternative would require a more rigorous analysis of the matter is not excuse enough for the blind adherence to customary practice.

Is the Legal System Failing us?

I attended Angus (or there abouts) today as part of a site visit alongside a solicitor. The case is concerned with rights of access and the maintenance of four roads leading to and from the client’s property. Aside from the fact that the daft lawyer forgot to mention or attend to the registering of these rights in the appropriate register, this pending case (that may not even go to proof) highlights, in my opinion, the weaknesses in our current legal system. A system that is supposed to be help the “little guy” as well as the “big guy”; a system that is supposed to attend to and treat equally all those it seeks to protect; a system that promotes justice; a system that has failed at just that.

The client’s father owned a huge amount of land. It covered acres and acres of space and a fair few houses including a castle, which in its “hay day” was open mouth –worthy stunning but now sadly at the hands of the defendant resembles ruins after a bad storm due to shear lack of maintenance. Upon the father’s demise, the property was split and sold off in chunks. The defendant’s “chunk”, as it where, encompassed four roads for which he has a duty to maintain which he has not done. Entry through one of the roads’ into the client’s property is covered by greenery and dotted with a car grinding pot holes. We struggled in a Honda Civic. I wouldn’t stick around if it was snowing; that’s for sure. This is the best of the 4 roads. The others have been blocked or deemed too dangerous, that delivery drivers, post men and school buses have opted for different routes altogether. The client insisted on taking us down one of the more direct routes to the A90 in his X5. A route he used most frequently before causing damage to his car. I think I was lucky to successfully avoid concussion as we paraded through what were more like empty swimming pools as opposed to pot holes. To say it was a bumpy ride may be an offense in itself due to shear understatement. Not to mention that the defendant has ripped out drainage; this is causing more damage and making it unbearable in heavy downpour due to flooding. The nuisance caused by this neighbour has been endless: shouting verbal abuse, purposefully blocking entry to properties the client owns, having timed races in sports cars up and down these roads (baring in the mind there are children in the area and there was no pre warning of such a carry on); setting up a fire 4 and a half feet away from the client’s property door causing his shed to melt... this list was endless but basically stemmed down to the defendant’s persistent sickening hobby of making things as difficult as possible for surrounding neighbours

The client was clearly disheartened. Why has nothing been done? Why is this man allowed to continue in his shenanigans? The question has to be asked squarely in the face of our legal system. The defendant has been clever. When a court date is set, he half heartedly cuts back a bush or two and sits a large amount of gravel on his property as proof that he intends to fix drainage; the Sheriff has fallen for this among other ploys. This has gone on for 9 years to no salvation of the client who has lost faith in the council, the legal system and the police. This is wrong and so unbelievably shattering to hear for a law student who sought out to study law to help people like him. Not only has he been wronged by the authorities but by the very people that took stance to represent him thoroughly and properly, ie lawyers. I have no idea why this case wasn’t given the due attention it was; I couldn’t possibly speculate but it shouldn’t have been.

I watched this man rattle off endless exhausted methods of trying to resolve this dispute over the 9 years; each time planting his head straight into a brick wall and no progression of the case by his lawyers saw his faith in the legal system deteriorate. Practically as knowledgeable in this area as a fully qualified lawyer, he spewed out Latin maxims and possible arguments for he has had to rely on himself due to being consistently let down by those that should have protected him. He drafted his own minute of agreement and watched helplessly the defendant and his lawyer delete and edit as they pleased as he was backed by no representation by his firm at that time. Complaints to the Law Society of Scotland saw them rule that it was not “grave” enough. What is grave? Death? The very fact that a firm sought to pursue our client’s case then failed miserably at progressing the case and near enough abandoned it is “grave”. It’s grave to our client’s case. He stands in a weaker position because of this firm today and that firm shows no scars unlike this client.

It’s an apt depiction of our beloved legal profession. The little guy is still being trampled on as his case shows little hope of achieving anything. But the man has clearly suffered at the hands of this defendant and the legal system has remorselessly stood by and watched it happen. The legal system has failed him, and by failing him has failed me and damages the profession. More needs to be done to ensure loopholes are tightened within the law and that representatives of our legal system do a job to their upmost ability. Without this, the legal system resembles a waiting game. Who will cave first, the little or big guy?

The Imbalance of Private School and State School Pupils

Based on article: http://www.independent.co.uk/news/education/education-news/exam-board-to-penalise-private-school-pupils-2361429.html

There will be three groups of people in this debate - as there always is in any debate, so that statement wasn't very revolutionary. Firstly - the people that hate private schools and what they stand for which is essentially rich families that can buy their way through the education system. Secondly, there will be the people that see no problem in paying for an education if they can afford and want the best. And thirdly, there will be the people that don't give a hoot.

Despite coming from a family with many having attended the prestigious Hutcheson's Grammar School, I fall into the first category. Having said that, I am against the new proposal which would see the exam board penalising private school pupils. But is it really penalising? Or is it, simply, balancing the playing field?

My concrete hatred of private schools stems from not the fact that they achieve better grades; or that their uniform consists of a blazer; or that they are full of "stuck up ferrari comparing yahs" but that these schools after enforcing upon their applicants to sit an exam of a certain standard and level and basing whether that pupil gains entry into the school upon that - they will then boast about having the cleverest pupils in the country. Well.. congratulations. Who would have guessed that by picking the cleverest pupils from a line up, would result in achieving better grades? It's not like a sports captain would be at all surprised if he picked the guy with a limp, the girl with a broken arm and the fat kid with the doughnuts, and thereby lost the match....

It is not only the above that makes me want to bite bricks out of every private school in the country but it is the mannerisms and behaviour of the pupils within these establishments. It's like they get hit with the pompous stick on their first day and receive regular beatings throughout their education when they start to see sense. I have seen first hand the difference it can make on their attitude. When confronting someone:
Me: "Well of course Hutchy has the highest achievement levels, they pick what students they want!"
Someone: "That's not true! They have to let thick people in, as well".

"Thick people"? It's quite hilarious and extremely sickening to hear that this is the way pupils will differentitate people based entirely upon an exam. Some of the smartest people I know don't perform well in exams - does  that make them "thick"? Having said that, I am not implying that such attitudes do not exist in state schools - they exist everywhere but where it exists in such a fundamental divide (such as the ability or non ability to cough up lungs to sell for education every year) then the attitude has a more detrimental effect. Anyway, I digress. DISCLAIMER: I did not kill "someone" but I wanted to. A lot. And time and time again.

Perhaps private schools should first teach their pupils how to socially interact. They charge enough. Or just teach them not to be stuck up farts.

The new system is to essentially balance things up again. With the common but unproven theory that private school pupils are essentially handed everything to them on a silver platter rested on a bed of rose petals; it provides state school pupils that bit of an edge in order to provide a fairer ground for establishing an education.

It seems great, in theory, but where do you draw the line? What about families that can afford to provide extra tutoring for their children? Or buy books for extra work for their children? (poor kid) Or send their kids to extra classes? These are all unbalancing features of the rich/poor divide with regards to education. What can be done about these? Very little, or in fact, nothing. By regulating any of these, is regulating the expenditure of a family which is ridiculous. So what is the difference between hiring a tutor and sending your kid to private school? Not much. Should you penalise someone for having an iPhone over a Nokia 3330? If you can afford it, what's the problem?

It is therefore impractical and unjust to base this penalising system purely on the fact one pupil attends a private school and the other doesn't. It will not be an accurate representation of what is actually happening. It won't provide a comprehensive balancing at all. The factors aforementioned are all relevant to varying degrees and will all have some sort of effect on the achievement of grades.

Nothing can be done of the rich/poor divide in education. Let people do as they please. If a private school education is what people believe will stand them in better stead, so be it but penalising private school students in this way is not going to make things "fairer"; there are too many external considerations which haven't had regard for. What I do advocate is the non comparing of private schools to public schools. They are not comparable. It is acutely unjust to compare them. If the government is so concerned with the possibility of "unfair advantage" to private schools - then why don't they just scrap private schools altogether? While they're at it, why don't they give everyone the same mobile phone, clothes, car and house? I believe that universities, employers etc should make up their own minds regarding the matter instead of arbitrarily enforcing a points system based on what school you attended.