Ask the QC

Why the Ronnie Fraser case against the UCU was a legal and public relations disaster

Jonathan Goldberg — Mon, 22 Apr 2013 10:58:47 +0100

Rebecca from Finchley writes: I was furious to read your comment last week that bringing the Ronnie Fraser harassment case against the University College Union was “an act of epic folly”. Surely it was high time the Anglo-Jewish community stood up for its rights, win or lose?

V Rebecca, I am unrepentant in my view that bringing the Ronnie Fraser litigation was a legal and public relations disaster. All those concerned should first have reminded themselves of the rabbinical saying that “All Israel is accountable one for the other.”

It was misconceived in law, wasted a fortune in legal costs (rumoured in legal circles to be over £500,000) but worst of all showed no Jewish seichel or streetsmarts whatsoever.

You only litigate such hotly contentious matters if you are being dragged to court as the defendant and thus have no choice, or if, as claimant, you are sure to win. This case sent out the worst possible message to our many hate-filled enemies, namely that rich Jews threw huge resources at a failed attempt to stifle free speech. The result was entirely predictable and had been anticipated by several wise legal heads.

Those who now react to this defeat with sour grapes should more carefully study the judgment, which even an old warhorse like me had to read three times for all the nuances. See http://www.judiciary.gov.uk/media/judgments/2013/fraser-uni-college-unio....

From a lawyer’s point of view, it is impeccably written and all too compelling. I cannot see any viable appeal arising from it and I would predict further damage and ignominious failure if such were attempted.

I do not accept that the court was antisemitic, as Dr David Hirsh and others have insinuated. Should Jews now be whiners who cannot admit we fought the wrong battle and miscalculated badly?

Do those who so rashly suggest on such shaky foundations that an English court was antisemitic have any conception of the damage they are doing to our community thereby?

Of the 10 factual complaints brought by Mr Fraser against the union, all but one were found to be unmeritorious after an exhaustive 20-day evidential investigation, with detailed reasons being given as to why the court rejected them. And even that one was brought out of time.

A main premise underpinning the claim — that the union was responsible in law for anti-Israel views promulgated by individual members in its annual congresses and in-house internet chatroom — was held wrong in law. Nor was that by any means the only error of law.

The underlying notion that a commitment to Zionism should be a “protected characteristic” in English employment law was in my view almost as fanciful as suggesting that supporting Tottenham Hotspur should be a protected characteristic, because so many Jews do so.

Who is qualified to say, unless they sat through the 20 days of evidence, that the particular criticisms made of the evidence of Jeremy Newmark and two MPs were not reasonable. And just as important, why did Mr Newmark and the others ever voluntarily place themselves in a position to be so criticised in support of a claim brought on such dubious legal foundations?

And why should the court be criticised, as so many have done in this newspaper, for saying “a belief in the Zionist project, or an attachment to Israel or any similar sentiment, cannot amount to a protected characteristic. It is not intrinsically a part of Jewishness and, even if it was, it could not be substituted for the pleaded characteristics, which are race and religion or belief.”

The critics have chosen to take five words out of context from this much longer passage in order to condemn the court for allegedly not recognising the attachment between the Jewish religion and Israel.

In context, the court was saying no more than that an attachment to the modern State of Israel (“modern” is important here) is not intrinsic to Jewishness. And that is surely correct.

I yield to nobody in my love for Israel and my support for Zionism. But who can ignore the stark fact that many fellow Jews, including, for example, certain Israeli academics and at least one sect of ultra-Orthodox Jews, are among Israel’s most rabid detractors, whereas many gentiles are fervent Zionists (Lord bless them).

Why was not a fraction of these legal resources used instead to bring a private prosecution against those activists who disrupted the Israel Philharmonic Orchestra or the Batsheva Dance Company?

Such cases would almost certainly have succeeded. Having recently attended the stellar AIPAC conference in Washington, Rebecca, I have to say this debacle would never have happened in America.

Unlike in the UK, communal organisations there are not constantly jockeying with one another for power and prestige — and the left hand actually does know what the right is doing.

When is a hate crime not a hate crime?

Jonathan Goldberg — Thu, 14 Mar 2013 14:04:53 +0000

Emma, a 15-year-old from Harrow, writes: My grandfather is 89 and thankfully he remains in almost perfect control of his memory.

As a teenager he fled from the Nazis, and he talks to me a lot about those terrible times. He is very worried about the way things are going in this country, and especially the anti-Jewish remarks of the Liberal Democrat MP David Ward, and the horrible Gerald Scarfe cartoon published on Holocaust Memorial Day. He says it reminds him of his boyhood experiences in Cologne, and that nobody would dare to treat the Muslims like this because the law would never allow such hate crimes against them.

Is he right about the law, and if so, why are the Jews not standing up for themselves in the same way?

Emma, your grandpa has voiced a concern that many of us nowadays feel, and many people write to me about, but sadly it is just not that simple to remedy. People seem to imagine that every time Jews or Israel are criticised or insulted, it is punishable as a “hate crime”. That is not so.

Nor does it make a difference that these statements have tended to become ever more fashionable, acceptable, unfair and biased in recent times.

The starting point is Article 10 of the European Convention on Human Rights. This reads: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The right is now enshrined in English law, and is considered one of the essential foundations of a democratic society, and it protects those opinions with which we as Jews agree, but also those with which we most violently disagree.

The expression “hate crime” is itself much overworked and misunderstood. It means that an existing crime is aggravated, and will be sentenced more harshly than otherwise, where it was “motivated by hostility towards the victim because of the victim’s ethnic or national origin or religious beliefs”. But it is no crime in itself to hate or criticise Jews or Israel, or indeed Muslims. The range of actual crimes for which a person can be prosecuted for what we all too loosely call “hate crimes” is in fact quite limited.

They include glorification of terrorism, which is obviously rare, and sending grossly offensive messages on social media (for example on Twitter). To be prosecuted in the real world however, the CPS will require the offensiveness to go way beyond the kind of messages which David Ward MP put out on Twitter, saying that Jews had not learned the lessons of the Holocaust. We may not like it of course, but that is an expression of opinion well within his right to freedom of expression. It is clearly distinguishable from saying, for example: “All Jews are evil and should be extirpated”, which one would certainly expect to be prosecuted.

Similarly, the Scarfe cartoon which depicted Bibi Netanyahu crushing Palestinian heads dripping with blood while building a wall above them, was grossly insulting and provocative and no doubt unfair, but not, I think, beyond his right to make political mockery of the Israeli Prime Minister.

The other body of law which creates crimes which might in theory be used to prosecute “hate crimes” is the Public Order Act 1986. Essentially, it prohibits using threatening, abusive or insulting words or behaviour, intending to cause another person harassment, alarm or distress. In general the offence can only be committed in a public place. So if someone shouts at me: “You dirty Jew, go back to Israel” on a bus (as someone once did), I would expect him to be prosecuted. If he says it to me in the Garrick Club (and no one has so far), I would not.

What this all amounts to, Emma, is that we Jews must learn to have thicker skins. Prosecution is rarely going to happen, and certainly not where the conduct complained of is clothed as criticism or opinion rather than insult.

We need to work on our political skills, our powers of persuasion and debate, and ask our friends (of whom we still have many, especially in the Christian community) to help us overcome the current wave of prejudice. This idea circulating within our community of prosecuting for “hate crimes” is largely a misconception of law, and it is time we face that fact.

Why do barristers defend the guilty?

Jonathan Goldberg — Thu, 07 Feb 2013 10:40:41 +0000

Jerome from Bournemouth writes: I am an avid reader of your column and enjoy learning about the various areas of law thrown up by the problems of your readers. However, I have read that you have defended in many high-profile criminal cases, some of which involved murderers and child abusers. I have always wondered how a barrister can plead innocence for such a client when he knows he is guilty, and whether you are allowed to refuse a case (say a terrorist who attacks an Israeli target) if his crime is offensive to your own conscience. Can you explain?

Jerome, even after 40 years in the law I am surprised how widely this issue is misunderstood. Any English barrister (or indeed solicitor) works to the following ethical principles when defending any man or woman accused of crime.

The first is the presumption of innocence. No man may be convicted of a crime unless and until the prosecution prove him guilty beyond reasonable doubt by admissible evidence, or (which amounts to the same thing) he confesses his guilt by entering a guilty plea before the court. As it is sometimes said: “An English court is a court of law, not a court of morals”. Thus he may in fact be guilty, but that is far from being an end of it.

Next, a defending advocate is not there to stand in judgment upon his own client. On the contrary, he is there to act as a mouthpiece, to make every proper point and to raise every possible argument as eloquently as the client would do himself, if only he had the skill. The whole world may be against the client (and I have had notorious cases where the hostility from the press, the wider public, and even the judge, is palpable), but the defending lawyer must ever be his champion.

When I teach young advocates, I tell them that the greatest possible betrayal is where the defending counsel forgets himself and makes it appear to his tribunal that he does not believe in the truth of his own client’s case, even for a moment and even by some accidental body language, such as an inappropriate sigh or gesture.

Thus I frequently give my client a very hard time in private in seeking to confront him with the flaws in his own case, and sometimes in seeking to persuade him to accept the inevitable and to plead guilty. But if my advice is rejected, and provided he has not confessed to me privately, as few do, it is my duty thereafter to suppress whatever private misgivings I may have, and to “go out on stage” and give it my all.

Nor may I pick and choose my cases according to whether I like or dislike my client, or have a personal view on the crime with which he is charged. We operate according to a “cab rank” rule, which means that (just like a black taxi) I must take him to his destination provided the fee is appropriate, whether or not it is convenient to me personally. I do know of a famous female barrister who would never accept to defend an alleged rapist, but that was in my view a shameful betrayal of our professional ethic.

The good sense behind these professional principles is obvious. Courts are completely unpredictable places, and innocent people sometimes appear to be guilty, and vice versa. This does not just happen in drama and crime novels, it happens regularly in real life, I assure you Jerome.

Likewise, any experienced lawyer will tell you that he often wins the cases he expects to lose, and loses the cases he expects to win. If the advocate were once allowed to sit in judgment upon his own client, it would mean that the innocent man against whom all the cards are stacked could never have his day in court, and that by extension, the liberty of the citizen would soon be lost.

Finally, it may surprise you to know that I am usually the very person worst placed “to know” if my client is guilty. Most guilty people deny it to the heavens. They try hard above all to persuade their own advocate to believe in them. I sometimes joke that there are no guilty people left in Britain’s jails.

Why we must not get hysterical over abuse claims

Jonathan Goldberg — Thu, 03 Jan 2013 15:00:18 +0000

Gerald from Manchester writes:

I was divorced from my first wife eight years ago, and our two children live with her, except every other weekend and holidays, when they stay with me and my new wife and baby.

My ex-wife was always a caring mother and I had no complaints until now on that score. However my 14-year-old daughter has related something to me which is causing me sleepless nights. My ex has taken up with a boyfriend who is more than 12 years younger than her. I think he is 33. While I want very little to do with him, my frank assessment is that she could have done an awful lot better for herself.

It seems my daughter was alone with him in the house last Sunday morning, when my ex was out shopping and my son was at football practice. She saw him standing naked shaving in the bathroom, with the door wide open. She made some embarrassed comment as she walked past, and he replied: “Time you grew up, young lady”. She has not told her mother yet.

Neither my daughter or her brother, who is aged 12, like this man, but my ex is totally infatuated with him. She dresses like a woman of half her age, she is talking about having breast implants, and spends long periods with him in the pub, according to my kids.

All sorts of plans are now whirling in my head, from confronting him physically, to phoning the police, to keeping the children at my house, to stopping the generous financial support which I give her, unless she throws him out. Please could you advise me what options I have.

Gerald, it sounds to me that the best advice I can give you right now is simply to calm down and do nothing precipitate. Whether you like it or not, you no longer have any control over who your ex chooses to go with. It is obvious that you may land up in court if you do anything physical or if you stop the financial support. This you are simply not entitled in law to do.

And what you have described is not a crime unless he exposed himself deliberately and intended to distress her. Nor, of course, do you want to traumatise your daughter or ruin her relationship with her mother.

Being objective, although you may not want to hear this, it is not impossible that your daughter has herself exaggerated the situation. Children who play off one divorced parent against the other, even subconsciously, are not exactly unknown, and you have said the children dislike him.

Clearly it was grossly inappropriate if he showed himself naked in front of her, and I agree you cannot let it pass. I suggest that you should seek an urgent private meeting with your ex. You should tell her what you have heard in a non-confrontational way. She might be as quick as you to condemn her boyfriend’s behaviour, and to do whatever is right unaided.

In an extreme case — for example, if she simply refuses to listen — you could consider seeking a “prohibited steps order” from the Magistrates Court under the 1989 Children Act. That could order your ex to do whatever were necessary to protect your daughter. If there were any repetition, your case to have the children reside permanently with you in future might be a strong one.

But if I may permit myself this reflection, as a barrister who has had very considerable experience of child sexual abuse cases over many years. I am personally very worried at the current climate in this country, which is in danger of becoming hysterical. I do not think the disgusting offences against children of which we are hearing so much currently, are new. I think they must always have gone on, because human nature and human sexuality have not changed.

What has undoubtedly changed for the better is the rate of detection, and I think also the degree of modesty and self-control which we rightly now demand of one another within the family setting and in society generally.

Whenever the pendulum swings however, there is a danger that it will swing too far over, before it corrects itself. While your concern as a father is totally understandable, this situation would have seemed a simple domestic misunderstanding before the current climate, and it could still be. I would advise you against overreacting before you know the full facts, nor should you allow your dislike of the boyfriend to affect your judgment. You need to handle this very delicate situation coolly, not least for the sake of your children.

My daughter is being blackmailed by her ex-husband

Jonathan Goldberg — Thu, 06 Dec 2012 11:17:53 +0000

Jane from London writes:
My husband and I are still reeling from news we have received from our daughter. She recently obtained her decree nisi of divorce from her husband on the grounds of his unreasonable behaviour, which has persisted throughout a long marriage.

A fortnight ago she attended the roundtable “without prejudice” meeting with her ex and their respective solicitors, in the hope of negotiating an amicable settlement concerning the property dispute and the children.

To her horror, her ex threw an envelope of photographs onto the table in the middle of the meeting, and said: “If you do not drop all claims to child support, I will send these to your boyfriend’s wife!”

When she looked at them, they showed her in somewhat compromising circumstances on a beach in Mauritius this summer, where she had gone on a short holiday with a gentleman with whom she has maintained a friendship since the effective breakdown of her marriage.

She believes they were followed there by a private detective. Until that moment she did not realise that her ex knew about the affair.

With that bombshell the meeting broke up, and everyone has gone away to think about it. She says her husband’s solicitor just sat there smirking as though this were the most natural thing in the world, while her own solicitor reacted (and continues to react) in a lame way.
He says there is little to be done as the meeting was without prejudice. Her gentleman friend is very upset and thinks he probably has no choice now but to confess the affair to his wife, who happens to be an extremely sick woman.

My daughter is in her late thirties and has three children under 18. She is a successful professional, and is as successful financially as her ex-husband. My husband and I are getting elderly, and in time there will be a considerable inheritance for my daughter and the children. I think this is making him jealous. It seems incredible that my daughter is not being advised by her solicitor to go on the warpath now. Am I right?

Jane, I am hiding your identity even more heavily than usual, because no lawyer relishes criticising colleagues, especially when he may not know the full facts. Nonetheless I find the advice your daughter has so far received to be strange, just as you do.

Firstly, there can be no “without prejudice” cover in such discussions when they relate to children. Next, child support cannot be ousted. Any agreement to oust the Child Support Agency is unenforceable.

Lastly, there can never be without prejudice cover when criminal threats are made, and it seems to me this conduct amounts to criminal blackmail. She could report it to the police as such. Needless to say your daughter will need to think long and hard before she chooses that course. He is still the father of her children.

No less worrying however is this aspect: I think prima facie the solicitor for her ex could be guilty of professional impropriety.

He is probably a member of the organisation Resolution, as most family practitioners are, and if he knew beforehand that something like this was going to happen, he could be expelled from the organisation for breaching their code of practice. This demands a non-confrontational and constructive approach in family cases.

There could also be a complaint to the Law Society. If he did not know about it in advance, one would expect him to rush now to dissociate himself, and even to refuse to act further for his client.

Nor does your daughter’s solicitor seem to have covered himself in glory. The sin here seems to be ineffectiveness. There is plenty to be done by way of protest at this unacceptable threat. The first thing may be a detailed open letter setting out the exact history of the meeting, and asking if his solicitor was complicit. Your daughter should certainly consider changing to new solicitors for this purpose.

I would add this finally. Her affair is of no possible relevance to the settlement, as her friend is still married, and I infer from what you write that they do not cohabit, and he does not support her financially. It could only make a difference if this were otherwise. Likewise such wealth as she or the children may one day inherit from you can be disregarded, because it is both too remote, and acquired after the divorce.

How to avoid a domestic with the hired help

Jonathan Goldberg — Thu, 08 Nov 2012 11:19:13 +0000

Joel from Wanstead writes:
I travel to Indonesia on business, and have come across a well-known agency there which supplies respectable local girls as domestic workers to foreign countries such as the UK.

The minimum contract is for 18 months, but they live in the home and perform all the domestic chores for a fraction of what an au pair or any UK worker would expect. Around £400 per month plus food, board and lodging is considered generous. My wife wants me to go ahead, but are there any legal complications?

Yes Joel, you are skipping gaily into a minefield. This is well illustrated by the cautionary tale of clients of mine, who recently won their case after four years of litigation, appeals and eyewatering costs.

They are a sophisticated and educated family of Syrian Arabs, well-known in the textile trade, who have lived in this country for decades. They are naturalised British citizens and devout Muslims. Interestingly, the husband told me “his father and grandfather always advised him to use a Jewish doctor and a Jewish lawyer”.

His wife had inherited from her mother in Beirut an excellent Indonesian housekeeper. On the death of the old lady, she came to London to live with them and their five children.

She was a veritable “treasure”, and as the employment tribunal later found, she was treated by them as one of the family. She shared with the wife the cooking and cleaning, she was the nanny to the children, and she accompanied them on their holidays and outings.

When the parents travelled abroad as they frequently did, and because she enjoyed their complete confidence, she was left in charge of the home and the children.

Being also a devout Muslim, she thus prayed, worked, and played with this family. She received a similarly low wage to that quoted by you above. Nonetheless such sums purchased a lot for her family back home in Indonesia.

All this came crashing to an end one night, when the wife discovered with horror in the housekeeper’s closet a magpie’s nest of items which she had stolen from the family. When confronted, she immediately confessed to theft.

The wife did not want to ruin her with the police, but mindful as she told me of an Arab proverb that “the thief in your home can never be watched”, she told her to return to Indonesia.

The desperate housekeeper recited her evening prayers with the wife, then locked herself in the downstairs toilet and drank strong bleach. She spent a month in a coma, before awakening with severe internal injuries.

It did not take long before she was in the hands of a charity dedicated to preventing the exploitation of migrant workers, plus left-wing lawyers experienced in bringing cases of this kind.

She sued for enormous damages, claiming she had been used and abused by the family and kept in conditions approaching slavery. Her suicide bid, she claimed, had been forced upon her by the humiliation for a Muslim lady, of a strip-search at the hands of the wife and her teenage daughter.

The court held after a long factual investigation, that her whole story was nothing but a “huge invention”. Meantime, the press coverage, the anxiety, the irrecoverable legal costs and the sheer nightmare of this family before they were finally able to clear their names, hardly bear thinking about.

Joel, even assuming that you can first obtain from the Home Office a domestic workers visa, you should realise that the national minimum wage currently at £6.19 per hour, is payable as a matter of law to all workers, including those in domestic service.

The only narrow exception, is where the worker lives in the family home and is genuinely treated as a member of that family, particularly as regards the provision of accommodation and meals and the sharing of family tasks and leisure activities.

There have been cases where the employment tribunal has declined to apply this exemption and has awarded the domestic worker the minimum wage, because she was subjected to second-class treatment as a servant (unlike this case).

It makes no difference if she holds the title of “au pair” nor whether she hails from Indonesia, Poland, or just plain Essex. If she sues you for the minimum wage, the court will investigate very closely whether you honestly treated her as a member of your family.

So live the life of Downton Abbey if your wife insists, Joel. But you could end up with more than you bargained for.

How can I avoid bequeathing my children a family broiges?

Jonathan Goldberg — Thu, 04 Oct 2012 10:57:28 +0100

Hetty from Edgware writes:
I am a pensioner aged 83, and I live alone with a part-time helper. My late husband who died last year always took good care of our finances. In truth I had very little knowledge or understanding of them previously. He left me with the house which I think is worth over a million pounds, and more than a million pounds in income-producing stocks and bonds.

I have three children who are all very good to their mother in their different ways. They each do their very best to visit me frequently and to make my life more pleasant. Each has their own children, so I have 10 lovely grandchildren.

However I cannot hide from myself that each of my children is very different in personality and needs. My eldest son is 61 and he is by far the cleverest. He has made a lot of money in business. He now looks after my affairs and I trust him totally. He has been very generous over the years to my husband and myself, but also to his younger sister and brother. In one sense he has given so much to my late husband and I materially, that he should have the best claim of the three after my death.

Life has not been kind to my daughter unfortunately. She is 58 and was recently divorced after a long and unhappy marriage to a gambler who lost all their money. She has a part-time job and works hard but she now lives in a rented flat and struggles to make ends meet. Her children are off her hands at least.

My youngest son is 45. He is only an employee, and will never be as successful as his elder brother, and he has large school fees to pay.

I now intend to make a will for the first time in my life. I feel in a terrible dilemma what to do, and have no one with whom to discuss it confidentially. Shall I divide my estate unequally according to their needs, and thus risk creating resentment after I have passed away, or shall I simply divide it equally between the three of them? I would very much welcome your thoughts.

Hetty, let me first reassure you that yours is a dilemma which must confront very many loving parents. From the strictly legal point of view, inheritance is one of the few areas where the citizen is still free to do with his money exactly as he or she sees fit, be it to the children or the cats’ home.

Sibling rivalry is always a delicate area even in the happiest of families. I have known cases where this situation has erupted into open warfare after death. Let me make a few tentative suggestions. You might consider placing your house in trust for your daughter, on the basis she can live in it rent-free for life, unless and until she remarries or moves to new accommodation; thereafter to be sold and divided equally between all three. This will place a roof over her head and save her rent.

The liquid assets forming the residue of your estate could likewise be placed in trust for a set period, for example until the children of your youngest son are grown-up, with the income being divided between him and your daughter only in that period, but the capital being divided equally among the three siblings thereafter.
You can write words in the will to explain your decisions, referring to your equal love and appreciation for all your children, but your recognition of their different financial needs.

You may also think it makes sense to leave the share of your rich son to his children, rather than to him directly. However since you are blessed with three children, and nothing you have said suggests they are not equally worthy and sensible people, could you not simply sit down with them all to discuss your dilemma frankly?

Alternatively, you should at least explain to your eldest son why you are minded to treat him differently. You may find he agrees wholeheartedly, and that he himself suggests the fairest way to do it from his point of view.

Remember that if you were to die without making a will, your estate will be divided equally amongst your children on intestacy. And you definitely need to use a solicitor. Homemade wills often fail because the formalities which are requisite before a will is valid in law are highly technical. Your bank can easily arrange this for you.

Our safe wasn't so safe

Jonathan Goldberg — Thu, 30 Aug 2012 10:52:10 +0100

Maya from Radlett writes:
My husband and I are in the process of renovating a large detached house set in beautiful gardens, but with the drawback (as it now turns out) that we are isolated from our nearest neighbours. We have lived here for five months. We just returned from our summer holidays abroad to find the house had been burgled. They entered by forcing our upstairs bedroom window. It seems they were then disturbed by the alarm going off. They left by the same window, without apparently going into any other room in the house.

We had built a small combination safe into a wall within the main closet, which we had not yet got round to concealing further, as we intended to do. It is not a particularly expensive safe but it is by a well-known manufacturer, and we were assured by the security company who supplied it that it would do the job. They gave us advertising literature which convinced us this model would be adequate for our needs. We had definitely set our own combination which we have been using regularly since, but by some fluke, the burglars managed to open it by using the original factory default setting of four zeros. They stole a sizable amount of cash and my best jewellery.

Our insurers have not yet pronounced finally but they are suggesting they may not be liable because of our negligence. They are implying we did not set our own combination and that we should have concealed the safe better. Can you please advise how best to proceed?

Maya, I sympathise with you. You might be interested to know that the notorious phone hacking scandal which led to the Leveson inquiry and the downfall of the News of the World, involved nothing more sophisticated than reporters hacking into voice messages by inserting the factory default code. It is an incredible fact that most people never bother to change it.

A number of legal issues arise here. Let us begin with the safe itself. You say that you did change the code and that you have successfully used your new code since. If so, logic suggests there must be a fault in the unit which has caused it to continue to recognise also the factory default code. I advise you to obtain an expert forensic report immediately to clarify this position. If favourable, you have a strong case in breach of contract for the value of your losses against the security company which supplied it.

Whether you can also sue the manufacturers if the supplier is not worth powder and shot is a far more complex legal issue. I do not think it was negligent of you not to conceal the safe better, but I hope that the expert will not conclude you failed to set your code correctly. If so, you may be unable to recover due to your own negligence, unless it were possible to argue, for example, that the instructions accompanying the safe were incomprehensible or misleading.

The next issue concerns your contents insurance and here it may well pay you to hire loss assessors to act for you. They normally charge a percentage of what they recover, but the insurers tend to listen to them more than to the policyholder acting alone.

We live in an age where insurers are much quicker to seize on any reason to avoid paying out, than was once the norm. It does not necessarily follow that the insurers will be entitled to avoid your claim, even if you or your husband did in truth fail to set the code correctly. This will depend on the exact policy terms. Some policies exclude losses due to the policyholder’s failure to protect his property carefully. Others do not. If you have a policy of the latter type, you need not bother about going against the supplier or manufacturer of the safe, since your insurers will be primarily liable. Obviously you cannot ever seek double recovery for your losses.

Last but not least, Maya, your local police station offers a free service whereby a crime prevention officer will advise you how best to protect your house. Most burglaries are opportunistic. Effective security which is prominently displayed will usually persuade a would-be burglar to look elsewhere for an easier target.

How to avoid starting a war with next door

Jonathan Goldberg — Thu, 19 Jul 2012 13:24:04 +0100

Ruth from Poole, Dorset writes: My husband and I are teachers. With our two children and our dog, we recently moved into a cottage in a quiet street which leads down to the beach.

What began as an idyllic move out of the big city is fast becoming a nightmare, however. My neighbour is a cantankerous elderly gentleman who lives alone except for regular visits from his lady friend, who seems to be equally eccentric.

When we called round to say hello, we were met with a string of expletives and the door was slammed in our faces. Both of them were obviously drunk. Then my son lost his football and they confiscated it. But now we have this. There is a strip of land, not much more than three feet wide, which separates our houses. It gives access from the street to a garage-type structure in his back garden which I think he uses as a games room. He could equally well access it from the other side of his house and rear garden.

When we purchased our cottage, there were several pretty floral bushes which our vendors had planted immediately next to my house, within this narrow strip. Last weekend we were in London for a wedding. When we got home, we were amazed to discover all the bushes had been completely (and, in fairness, quite neatly) removed. We confronted him, and he claimed that the strip of land belongs to him, that even if it does not, he has a right of way over it permitting him access to his games room, and that he is a retired solicitor (which is true) and he will “fight us all the way in court”. I have contacted our conveyancing solicitor, who says the strip is clearly shown as belonging to us on the plans with no right of way recorded. His games room does not even appear, which suggests he built it fairly recently. We have no funds to spare for a legal dispute. What shall we do ?

Ruth, you face the classic dilemma of how to deal with bad neighbours. Do you let sleeping dogs lie, given that the bushes are gone anyway, or do you defend your rights, given that he sounds the kind of bully who may otherwise keep on coming at you?

My instincts have always been to give clients the latter advice. You actually have several options which could make life uncomfortable for him, without involving you in legal expense. Firstly, and assuming as your own solicitor advised you that the strip is not his land and that he knows it, he has stolen your bushes. You could complain immediately to your local police station. They may investigate and interview him, even if he is merely cautioned at the end of the day. Next, this conduct by a solicitor would be unprofessional, and could therefore form the basis of a complaint by you to the Solicitors Regulation Authority. It is perhaps not generally known that every professional person is subject to professional codes of behaviour which impose higher standards than the general law of the land.

Next, you can enquire of your local council whether he did have planning permission for his games room, and if not, you can ask them to order him to demolish it. And if he has no right of way over the strip, you can fence it off and forbid him to use it, threatening to sue him for trespass otherwise.
The difficulty with any or all of these options however, is that they amount to a declaration of war. In my experience, although it is bizarre, certain people actually do prefer a state of war over peace. If he is that sort of sad person who has little else in his life, there is a fear that you will be adding fuel to his flames by taking any such action.

This problem therefore passes from the strictly legal sphere into a matter of personal judgment for you and your husband. Why not make enquiries about him from your other neighbours, and see if they can offer any advice on how he is best handled? Very often, as the proverb goes, you can catch more flies with honey than with vinegar. Or at least, how about seeking urgently a face to face discussion with him, before declaring war on all fronts? As Churchill said: “Jaw jaw is better than war war”.

My daughter's been insulted. Can I sue?

Jonathan Goldberg — Wed, 13 Jun 2012 17:23:29 +0100

Renee from Leeds writes: I have just received a most horrible email. It is from the mother of one of my daughter`s best friends. My daughter just turned 15, and is a well-behaved girl and a fine student.
She attended her schoolfriend`s birthday party last weekend, to which many other boys and girls were invited. Unfortunately it seems to have ended up as a fairly rowdy affair. I think she can hardly be blamed for the fact that she is quite physically mature, and is exceptionally healthy and pretty. The girl`s mother has written to me saying my daughter was “dressed like a hooker” and “behaved like a slut” and that she does not want her to come to the house again. She then says I am “the type of mother whose behaviour sets a very bad example to her own daughter.”

There is no truth in any of this. Although I am a divorced woman and a single parent, I am proud to have brought up 3 lovely children all of whom are doing well in life, and I receive numerous compliments about them.

I have a responsible job, and a longterm boyfriend. He does not live with me -if that is what she is hinting at. I saw how my daughter was dressed when she left home to go to the party, and I saw nothing especially wrong or different from other kids of her own age. In my opinion, this mother is a very dowdy person with issues of her own. I am incensed, and I am thinking of suing for libel. My boyfriend says he will back me financially if I do. He thinks I have a strong case. Do I ?

Renee, if you take my advice, you will treat all this as a storm in a teacup. You should not dream of suing. Libel is defined as a statement published in permanent form (an email certainly qualifies in that respect) which is calculated to injure the reputation of the victim by bringing him or her into hatred, ridicule or contempt, or lowering them in the estimation of right-thinking people generally, or causing such right-thinking people to shun or avoid them.

However, as one great Victorian judge put it: “you cannot publish a libel of a man to himself.” In other words, for A to sue B for libel, B must first have published the libel to C. An email which was written to you about you, however vulgar, offensive or untrue the content was, does not give you any right of action whatever in law.

The only person who has a potential claim here is your daughter, as the insults about her were published to you. But here we run into a further problem. Since you were the only person to whom the email was sent, and since you plainly do not believe it, nor think any the less of her on account of it, nor will you shun her, she has suffered no damages. The monetary award would be nominal only. She would probably not recover her legal costs, since the judge would conclude you had made a mountain out of a molehill. If you yourselves have chosen to show this email to other people in your circle, it is you, not the girl`s mother, who is to blame in law for publishing the libel further.

I advise you to write back a stern but temperate letter, warning her that what she wrote about you and your daughter was defamatory and untrue, and that if she dares repeat any of it you will consider suing her.
You would be amazed how many enquiries I receive, where people are threatening to sue for defamation over all sorts of incidents. Their ardour often cools when I point out that of all legal actions, this is the most expensive and the least predictable in outcome. Even though the law presumes any defamatory statement to be untrue, and the burden of proving it is true falls always on the defendant, namely the other mother, the unexpected often happens. Ask Oscar Wilde in a bygone era, or Jonathan Aitken in this. That is why they wisely say: “Today`s newspapers are tomorrow`s fish and chip papers.”