Fwd: Fwd: Delivery Status Notification (Failure)

[Peter Fairbrother]

On 22/03/14 01:19,Francis Davey wrote:

> 2014-03-20 22:46 GMT+00:00 Peter Fairbrother <zenadsl6186 at zen.co.uk
> <mailto:zenadsl6186 at zen.co.uk>>:
>>
>> Suppose I say that the egg is not in the safe? Could a Court order
>> me to open the safe? I'm pretty sure it could order some baillifs or
>> whoever to open it, but order me?
>>
>
> In principle, I suspect yes the court could order you to do that.
> Courts have been quite innovative at using injunctions over the
> years.
>
> In practice, in the example I gave, the court would almost certainly
> order you to hand over the *egg* rather than open the safe. The court
> won't care (and the claimant won't have any legitimate interest) in
> where you have put it, just that you give it back.
>
> I picked a detinue/torts interference with goods act 1977 case for a
> concrete example. It *might* be possible to manufacture a cause of
> action where the safe must be opened but I can't see one offhand.
>
> In making the order the court will have had to decide whether or not
> you had the egg. If the injunction was an interim injunction there'll
> have been a different exercise than if the injunction is a final
> injunction. Take the final injunction as an example: the court will
> have to be satisfied on "balance of probabilities" (i.e. P(you have
> the egg|evidence available to the court) > 0.5) that you have the
> egg. If satisfied they will almost certainly make an order for
> delivery up.
>
> If you say you don't have it - well that will already have been
> decided.
>
>>
>> Suppose you can't prove, beyond reasonable doubt, that some
>> evidence against me is in the safe until you see it - and the only
>> way to see it is if I open the safe?
>
> In the *egg* case, at committal for contempt, the court would have to
> find (on the criminal standard) that you were in contempt, ie. that
> you had the egg and were refusing to comply with the order to give it
> up. If the court so finds you could be jailed.

OK.

> In terms of "evidence against" you - not the egg case. The legal
> framework is different. If it were (say) a civil claim for disclosure
> of evidence,
>
> ----- Message truncated -----

Aaarrgh, just when it got interesting.

Just one point, in the "evidence against you" case, if they can prove to 
criminal standards it is in the safe, they don't need to get you to open 
the safe - they can just convict you on the evidence.

It's when they can't prove that that it gets interesting. In the civil 
case, assuming that they can't get you to open the safe - Nicholas 
thinks they might be able to - you can only be convicted (of contempt) 
if they can prove the egg is in the safe.


-- Peter Fairbrother