Phorm, RIPA, the ICO and the HO
Ian Batten
ukcrypto at chiark.greenend.org.uk
Wed, 9 Apr 2008 17:51:32 +0100
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On 09 Apr 08, at 1631, James Firth wrote:
>>
>> Perhaps they mean ``in the absence of good case law, the only people
>> who have an opinion that's worth anything are the bill's drafters.
>> Once there's some case law, the case law prevails.''
>
> Isn't this where, in the public interest, legal aid can be sought =20
> for a test
> case? (Please cut your laughter at this na=EFve fool, thank you).
In fact, sometimes the plaintiff's costs are met by the defendant.
The case I have in mind is Royal Bank of Scotland v. Etridge
This case in turn follows on from Barclays Bank Plc v O'Brien
In RBS v Etridge (with a lot of other similar cases on the same =20
judgement, and every other bank you can think of joined to the action) =20=
the House of Lords produced a list of criteria to be used in order to =20=
assess the legitimacy of a spouse (usually a wife) agreeing to a bank =20=
taking a security over the marital home for a business loan to the =20
other spouse (usually the husband). After the judgement, a bank =20
could ensure they followed the steps laid down, such as
> The solicitor's discussion with the wife should take place at a face-=20=
> to-face meeting, in the absence of the husband. It goes without =20
> saying that the solicitor's explanations should be couched in =20
> suitably non-technical language. It also goes without saying that =20
> the solicitor's task is an important one. It is not a formality.
because
> As already noted, the advice which a solicitor can be expected to =20
> give must depend on the particular facts of the case. But I have set =20=
> out this 'core minimum' in some detail, because the quality of the =20
> legal advice is the most disturbing feature of some of the present =20
> appeals. The perfunctory nature of the advice may well be largely =20
> due to a failure by some solicitors to understand what is required =20
> in these cases.
and thereby be confident their security was sound. It addressed =20
issues such as if the advice to the partners needs to come from =20
different solicitors (it doesn't, par 73-74).
I believe that in this case, the banks certain agreed not to pursue =20
costs consequent on the appeal, and in fact may actually have =20
underwritten the action for both sides. They wanted and needed a =20
judgement, not a settlement, for the future.
ian=
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<html><body style=3D"word-wrap: break-word; -webkit-nbsp-mode: space; =
-webkit-line-break: after-white-space; "><br><div>On 09 Apr 08, at 1631, =
James Firth wrote:<br><blockquote type=3D"cite"><div><blockquote =
type=3D"cite"><br></blockquote><blockquote type=3D"cite">Perhaps they =
mean ``in the absence of good case law, the only =
people<br></blockquote><blockquote type=3D"cite">who have an opinion =
that's worth anything are the bill's =
drafters.<br></blockquote><blockquote type=3D"cite">Once there's some =
case law, the case law prevails.''<br></blockquote><br>Isn't this where, =
in the public interest, legal aid can be sought for a test<br>case? =
(Please cut your laughter at this na=EFve fool, thank =
you).</div></blockquote><br></div><div>In fact, sometimes the =
plaintiff's costs are met by the defendant. =
</div><div><br></div><div>The case I have in mind is <a =
href=3D"http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd01101=
1/etridg-1.htm">Royal Bank of Scotland v. =
Etridge</a></div><div><br></div><div>This case in turn follows on =
from <a =
href=3D"http://www.swarb.co.uk/c/hl/1993barclays_obrien.html">Barclays =
Bank Plc v O'Brien</a></div><div><br></div><div>In RBS v Etridge (with a =
lot of other similar cases on the same judgement, and every other bank =
you can think of joined to the action) the House of Lords produced a =
list of criteria to be used in order to assess the legitimacy of a =
spouse (usually a wife) agreeing to a bank taking a security over the =
marital home for a business loan to the other spouse (usually the =
husband). After the judgement, a bank could ensure they =
followed the steps laid down, such =
as </div><div><br></div><div></div><blockquote type=3D"cite"><div>The=
solicitor's discussion with the wife should take place at a =
face-to-face meeting, in the absence of the husband. It goes without =
saying that the solicitor's explanations should be couched in suitably =
non-technical language. It also goes without saying that the solicitor's =
task is an important one. It is not a =
formality.</div></blockquote><div><br></div><div>because</div><div><br></d=
iv><div><blockquote type=3D"cite">As already noted, the advice which a =
solicitor can be expected to give must depend on the particular facts of =
the case. But I have set out this 'core minimum' in some detail, because =
the quality of the legal advice is the most disturbing feature of some =
of the present appeals. The perfunctory nature of the advice may well be =
largely due to a failure by some solicitors to understand what is =
required in these cases.</blockquote><br></div><div>and thereby be =
confident their security was sound. It addressed issues =
such as if the advice to the partners needs to come from different =
solicitors (it doesn't, par 73-74).</div><div><br></div><div>I believe =
that in this case, the banks certain agreed not to pursue costs =
consequent on the appeal, and in fact may actually have underwritten the =
action for both sides. They wanted and needed a judgement, not a =
settlement, for the =
future.</div><div><br></div><div>ian</div></body></html>=
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