Understand Your Rights. Solve Your Legal Problems
Aman Johal, Lawyer and Director of Your Lawyers, illuminates the scandal for Lawyer Monthly.
Car manufacturer Daimler (Mercedes) is alleged to have installed software to ‘cheat’ diesel engine emissions testing in a similar way to Volkswagen.
Daimler is accused of fitting affected vehicles with “defeat devices” which are illegal under EU law. Such devices may allow vehicles to pass emissions testing and secure road safety approval under EU emissions regulations by detecting when a vehicle is on a test cycle that results in emissions-reducing technology to engage. However, once on the road and outside of test conditions, these same vehicles could produce quantities of NOx emissions far above EU and US standards.
Although news of the legal action we are taking has only recently hit the headlines, this is not a new issue for Mercedes vehicles. In Germany, Mercedes’s parent company Daimler was fined £776 million after 774,000 vehicles allegedly fitted with "defeat devices" were recalled across the country throughout 2018. Now, in the UK, it’s estimated that half a million vehicles could contain “defeat devices”, and owners could be eligible to claim substantial damages in compensation.
Although news of the legal action we are taking has only recently hit the headlines, this is not a new issue for Mercedes vehicles.
For many, this story may feel like déjà vu. Back in 2015, over 1.2 million Volkswagen vehicles across England and Wales were under recall for defeat device technology. The High Court recently ruled that the technology used by Volkswagen is a type of defeat device, and tens of thousands of owners now await compensation. Your Lawyers spearheaded the initial legal effort to bring VW to justice with the first High Court action in January 2016, and was appointed with a seat on the Steering Committee by the High Court of Justice in 2018 having previously represented over 10,000 claimants. With an estimated average of £8,500 in compensation for each claimant, the action could total up to £10.2 billion nationwide as one of the largest group actions the UK has ever seen.
If the High Court rules in a similar way for the pending action against Daimler, owners taking part in what will become the latest ‘dieselgate’ litigation may also be due compensation. Revelations about the use of defeat devices has caused a great deal of understandable concern. In the US, it has been estimated that 59 premature deaths may have been caused by the excess pollution produced between 2008 and 2015 by vehicles equipped with a defeat device.
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Drivers who have owned or leased a Mercedes-Benz diesel car or van, first registered between 2009 and 2018, should look to claim compensation. Some owners could be eligible to claim under the Consumer Protection from Unfair Trading Regulations 2008 (CPUT) which can allow a claimant to receive up to 100% of the purchase price of their vehicle in cases where a vehicle manufacturer has engaged in ‘very serious’ prohibitive practices. This could fall to 75%, 50%, or 25% if the prohibitive practices are deemed to be less severe.
This means that Claimants eligible for a 100% CPUT claim could be entitled to receive between £23,775 and £96,220 in compensation depending on the model of their vehicle, according to ‘on the road’ price data from Mercedes in May 2020. Almost a third of Volkswagen Claimants are estimated to be eligible for a CPUT compensation claim and a similar proportion of Mercedes drivers are also expected to be eligible, if not more. We encourage Mercedes owners to come forward as soon as possible to claim compensation owed to them via Your Lawyers’ dedicated website: The Car Emissions Lawyers.
If Mercedes-Benz is found to have used “defeat devices” to cheat EU emissions regulations, they must be held to account for any irreversible human and environmental damage caused, and compensation should be issued to owners. Much like the Volkswagen case in 2015, we may be looking at another example of a big corporation putting profits before people, the environment, and public health.
Divorce is almost always a contentious process. In it, you are fighting against the one that you once loved, or perhaps even continue to love. You will have to go into the details of your relationship to prove certain points; and you will have to share them with others, strangers at that!
The whole separation is stressful, not only to the couple, but also to their children. Seeing their family crumbling is surely not the most pleasant experience. As is the case most of the time, kids love both parents and it pains them that in one way or another they will have to take sides.
Many divorce lawyers say that they approach each case with the intent to put the rights and welfare of the children first. Given this, it’s logical to assume that it’s going to be easy to reach a resolution as far as the kids are concerned. But this is not always the case. In this article, we present three of the most important factors that inform the court’s decision regarding child custody disputes.
Many divorce lawyers say that they approach each case with the intent to put the rights and welfare of the children first.
Among the most basic things that the courts look at is the financial capability of the parents. The rule of thumb is to award custody to the one that has material resources. And this makes sense since the kids need money for school, healthcare, and other basic needs. To prove their points, both parents may have to submit documents that state that they have a home to live in and a job that pays an income.
It is easy to decide on this if the disparity is significant. But if both parents are of more or less the same financial standing, the battle can become a little heated. It becomes even more so if neither is willing to compromise. In such cases, the courts will have to look at other factors.
The living arrangement of the kids will be determined in detail by the court. The rendered decision may cover important aspects such as in whose house the kids are going to live and how support from the other parent will be paid. Many decisions also determine visiting schedules.
A good child custody lawyer should know that money and other material things are not the only things that are important. Above all else, kids need a safe environment that is free from emotional stressors. Interactions between ex-partners who separated on bitter terms can bring undue stress on the kids. A good lawyer can ask the court to limit the need for in-person interactions (e.g. support payments must be made via online transfers, etc.) or in extreme cases deny visitation rights altogether.
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However, such points are a bit challenging to establish. This is really where an experienced lawyer can have great contributions.
Besides putting the ex-partners in scrutiny, most states, Pennsylvania included, allow the courts to consider child preference in making custody decisions. The kids, after all, have the right to express their opinions and actually be heard. But how much weight the court puts in the children’s preferences differs from court to court. For sure, the court will not award custody to a financially incapable parent even if the child wants it.
Child custody battles are among the most contentious and most detailed aspects of the divorce process. Good child custody lawyers must know what factors matter in the decision-making process so that they reach a resolution without complicating an already stressful situation.
Novartis International AG has reached settlements with the US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC) to resolve all currently active investigations into the allegedly improper conduct of its overseas subsidiaries.
In a statement, DOJ assistant attorney general Brian Benczkowski described the company as having “profited from bribes that induced medical professionals, hospitals, and clinics to prescribe Novartis-branded pharmaceuticals and use Alcon surgical products,” and concealing evidence of said bribery by falsifying records.
According to the agreement reached, Novartis Greece paid employees to provide “improper benefits” of its drug Lucentis to doctors between 2012 and 2015 to boost sales, and falsified records to conceal evidence of criminality.
A similar scheme was conducted by Alcon Pte Ltd, Novartis’s former subsidiary in Vietnam, where employees made corrupt payments through a third party to staff at state-run medical centres to boost sales of intraocular lenses. Again, records were falsified to record the issued bribes as consulting, marketing and human resource expenses.
With the settlement payments – which total $234 million to the DOJ and $113 million to the SEC – “all outstanding FCPA investigations into the company are now closed,” according to a statement issued by General counsel Shannon Thyme Klinger.
“Today’s settlements represent another milestone in our commitment to resolving legacy compliance issues and ensuring that Novartis truly lives its values.”
The Greek government has announced that it will be seeking compensation from Novartis for losses incurred by the state in connection with the bribery scandal.
Rahman Ravelli's Legal Director, Nicola Sharp, shares with Lawyer Monthly her analysis of the restrictions that are hampering the CMA's ability to do its job.
Among all the inevitable noise and statements of intent prompted by the COVID-19 pandemic, the Competition and Markets Authority (CMA) made it clear how it was going to set about its task.
The CMA’s establishing of a COVID-19 task force to monitor market developments and identify the biggest problems was understandable. Its updates emphasised the need for action – and revealed that the period 10 March to 17 May had seen it contacted more than 60,000 times by those with coronavirus-related complaints. When disclosing the 60,000-plus figure, the CMA emphasised that it “will not hesitate to take enforcement action”.
But, unfortunately, the CMA’s bark appears louder than its bite. Its chairman, former Conservative MP Andrew Tyrie, has announced he is quitting after two years, citing the “inherent limits’’ of his position when it comes to bringing in reforms – and having previously said that UK competition law was not fit for the modern age. Meanwhile, the CMA’s declaration of intent regarding COVID-19 was swiftly followed by a request for tough temporary powers to tackle pandemic-related wrongdoing. Yet this application was denied by the Department for Business, Energy and Industrial Strategy (DBEIS) – a decision that must have left the CMA looking enviously at countries such as the US and France, where its counterparts were being given the proactive, intrusive powers they requested.
The pros and cons of the situation the CMA finds itself in could be discussed and debated at length. But there is little doubt that the CMA has, arguably through no fault of its own, been shown to be lacking firepower at this current time. Unfortunately, its inability to go on the offensive is nothing new.
Five years ago, the results of the CMA’s 18-month competition probe into UK retail and business banking was met with widespread anger from politicians, business lobbies and some banks, who branded it inadequate. This came just a year after the CMA was incurring the wrath of some in the insurance industry for a lack of action on credit repair. And a year after its banking saga, its report into the energy market was accused of being a damp squib, a whitewash and a symptom of the CMA’s retreat in the face of pressure from the big six power companies.
When you also consider that just three months ago the CMA was being criticised for what many saw as its timid approach in its interim report on online platforms and digital advertising, its lack of clout when it comes to tackling a pandemic can’t be seen as a one-off.
The nature of the CMA’s work means that it will never please everyone in all business sectors all the time. Which is why, for many in business, taking matters into their own hands may be a more effective course of action than relying on an organisation that – sometimes at least – seems to be fighting the good fight with one hand tied behind its back.
Anyone seeking redress for what they see as improper business behaviour may well be better off looking to take action themselves rather than relying on an overworked and underpowered CMA. This becomes arguably a more logical, obvious approach the more complex or high-stakes the issue in question is. Civil litigation could well prove to be a swifter, more direct route for those in business looking to put right the wrongs that are hampering their business.
This is not another criticism of the CMA. Let’s be clear, competition and consumer law is limited and prevents the CMA from being able to combat effectively many of the issues that affect those in business. The CMA may continue to push for new or greater powers so that it can be increasingly effective. But right now civil litigation has to be seen as the most direct way of putting such power in the hands of those that need to see it exercised on their behalf.
Cartels and anti-competitive behaviour have the potential to be hugely damaging to most, if not all, areas of national, international and globalised business. Markets can be distorted. Those who feel the effects of this need to feel confident that when it happens they can seek recourse.
In the UK, the Competition Act 1988 and Article 81 of the European Community Treaty have prohibited cartels. A business found to be a member of a cartel could be fined up to 10% of its worldwide turnover. And in June 2003, when Part 6 of the Enterprise Act 2002 came into force, individuals were targeted. Section 188 of the Act set out the definition of the new criminal cartel offence, whereby an individual is guilty of the offence if they have agreed with another person to make or implement - or cause to be made or implemented - an arrangement between at least two parties to fix prices, limit supply or production, share customers, share supply or to enter into bid-rigging arrangements.
This was a much-needed piece of legislation. But it falls to the CMA to enforce it. And unfortunately, as we have said earlier, hanging your hopes on the CMA may well lead to disappointment. Civil litigation may well be the best immediate hope for those wanting action to be taken. Such stand-alone claims do not require any input from the CMA at any stage. And there is even a case to be made for bringing a private prosecution against those who are believed to have breached the legislation that the CMA is expected to enforce.
This may be a situation that has been highlighted by COVID-19 but it is certainly not a recent development.
On Wednesday, over a hundred law firms announced their participation in the new Law Firm Antiracism Alliance (LFAA), which intends to tackle racism in the legal industry and in government.
As outlined in the alliance’s charter, the group’s aim is: “To leverage the resources of the private bar in partnership with legal services organizations to amplify the voices of communities and individuals oppressed by racism, to better use the law as a vehicle for change that benefits communities of color and to promote racial equity in the law.”
To achieve this, the LFAA aims to coordinate its member firms in undertaking pro bono projects and dedicating resources to initiatives that address systemic racism.
The initial point of contact for the alliance is Kimberly Jones Merchant, Director of the Racial Justice Institute (RJI) and Network (RJN) at the Chicago-based Shriver Center on Poverty Law.
Jones Merchant, who has worked as an attorney for 23 years, said that the disproportionate effect that the COVID-19 pandemic has had on black communities, in conjunction with the killing of George Floyd, have galvanised efforts to a greater extent than has previously been seen.
She also acknowledged the challenges inherent in achieving the alliance’s aims of ending systemic prejudice. “We are going to have some bumps in the road,” she said, speaking with The American Lawyer. “It is an experiment, and both sides are going to have to make adjustments.”
One of the alliance’s partner firms, Skadden, Arps, Slate, Meagher & Flom has compiled a running list of organisations that have joined the group. The total count stands at 127 as of publication.
Lucy Lewis and Shalina Crossley of Lewis Silkin, the UK member firm of Ius Laboris, the world’s largest HR and employment law firm alliance, provide guidance to employers on how far their duty of care covers risks to employees during their commute to work, particularly as more people are returning to workplaces in the UK.
Following the government’s publication of its post-Covid recovery strategy, employers are beginning to consider how they may safely reopen the workplace for those who cannot work from home. All employers have statutory duties to provide a safe place of work and general duties of care towards anyone who may be accessing or using their place of business. In order to prepare for reopening, employers are, therefore, required to undertake a health and safety risk assessment to identify current potential hazards in the workplace including the danger of COVID-19 transmission between employees. The employer must then take action to minimise those risks.
But what of risks faced by employees during their commute to work? For many employees, the key concern is not what happens in the workplace, but the risks of using public transport to get there. Does the employer’s duty of care extend to those?
What are an employer’s health and safety obligations?
There are four key legal responsibilities here:
Under the existing legislation, an employer’s duties to ensure the health, safety and welfare of its employees only extend to the workplace or where an employee is acting in the course of their employment. With very limited exceptions, that does not include risks they may face while travelling to and from work.
Employers also have a common law duty to take reasonable care for the health and safety of their employees. An employer can be found liable for negligence if it is in breach of this duty. An employer will only be in breach if:
We are not aware of this duty being extended to an employee’s commute, and under ordinary circumstances, it would not be reasonable to do so. However, in this context, it is possible that employers could be found to have some duties to help employees avoid COVID-19 risks relating to their commute.
Employees have a right under s44 of the Employment Rights Act 1996 (ERA) not to be subjected to any detriment for refusing to come to work in circumstances where they reasonably believe they are in ‘serious and imminent danger’ which they could not reasonably have been expected to avert.
An employer also has an implied contractual duty not to act in a manner which is calculated or likely to destroy the relationship of trust and confidence which underpins all employment relationships. In the current situation, it is possible a court might conclude that your implied duties of care and to maintain trust and confidence require you to have regard to risks associated with an employee’s commute. In other words, you could potentially risk constructive dismissal claims if you put employees in an untenable position over their commute to work.
This is the most relevant obligation and we look at this separately below.
Does an employee’s commute pose a serious and imminent danger?
Employees have a right under s44 of the Employment Rights Act 1996 (ERA) not to be subjected to any detriment for refusing to come to work in circumstances where they reasonably believe they are in ‘serious and imminent danger’ which they could not reasonably have been expected to avert. It does not matter if the employer disagrees about the danger: the question is whether the employee’s perspective is reasonable.
In this situation, the employee has the right not to be subjected to any ‘detriment’ on the ground that they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work.
This statutory right appears to have been designed to protect employees from urgent dangers at the workplace (e.g. fire or asbestos) where they have no reasonable option but to leave or refuse to return to work. While the reference to ‘place of work’ in s44 might suggest it is limited to that situation, it is unclear whether it was also envisaged to cover dangers posed by an employee’s commute to work.
Employees who can fall within the protection of this section have the right to stay at home on full pay. At least, that is the implication, since ‘detriment’ would ordinarily cover loss of pay. There may, however, be scope for arguing that an employee who stays home on furlough or unpaid leave because of travel concerns is not being denied any pay that would otherwise have been due, or that pay is not being withheld because the employee refused to return to work. These arguments could possibly find favour with an Employment Tribunal (ET) in circumstances where the employer is taking all reasonable steps to control the risks.
The Edwards case and why it does not resolve these questions
In this context, it is interesting to note the 2014 case of Edwards and others v Secretary of State for Justice, which concerned 13 prison officers who refused to travel to work along a road which had been closed due to heavy snowfall. They were required to wait at an agreed pick-up point, with other prison staff, in accordance with the employer’s adverse weather policy. The prison sent a 4x4 truck and later a minibus, in which most of the staff travelled to work. The 13 claimants refused, citing concerns for their safety. They were not paid for that day and brought claims for unlawful deductions from wages, also asserting that they had suffered a detriment under s44 of the ERA.
The ET dismissed the claim but the Employment Appeal Tribunal (EAT) allowed an appeal, on the basis that the ET had not properly considered the reasonableness of the prison officers’ belief that travelling to work via the snow-obstructed road would place them in ‘serious and imminent’ danger. Significantly, the EAT said it was not relevant that some of the prison staff had made the journey safely, as this did not have any bearing on the reasonableness of the claimants’ belief. The case was sent back to the ET and the outcome is unknown.
We can expect litigation on this issue and other legal conundrums raised by COVID-19, but the outcome of any litigation may not be known before employers need to make practical decisions about how to mitigate their risks.
While this case certainly suggests that employees can take protected action over an unsafe journey to work, our view is that it does not resolve the important questions:
i. The journey to work in this case was unusual. It involved travelling over the (relatively remote) road which leads to HMP Dartmoor. The officers had been asked to meet in a supermarket car park, from which prison vehicles would collect them. The employer seems to have been assuming some responsibility for this part of the journey and it was asking the employees to travel in work vehicles. This is very different from a city commute on public transport.
ii. The EAT’s judgment did not deal with the specific issues of whether section 44 of the ERA extends to travel to and from work, or whether a failure to pay an employee where no work has been performed always amounts to a detriment.
iii. The EAT said it made a difference what the police had said about prison vehicles using the closed road. If the claimants were told that the police had confirmed they could travel in the prison vehicles, then ‘it would be very difficult indeed for the claimants to maintain that they had a reasonable belief in serious danger.’ This raises questions over whether advice (for example, from bodies such as SAGE) could influence the issue of reasonableness.
Finally, don’t overlook mental health. Many people will be anxious about the prospects of returning to work, and especially using public transport.
How should employers deal with this issue?
We can expect litigation on this issue and other legal conundrums raised by COVID-19, but the outcome of any litigation may not be known before employers need to make practical decisions about how to mitigate their risks. Our recommended approach is as follows:
The Ius Laboris Coronavirus Resource Hub provides information and tools to help employers manage their international workforce in these times of crisis.
In today’s day and age, the advent of social media is on the rise creating its presence like never before and it is felt everywhere - as a growing field of business projection, contractual arrangements and revenue generation. However, for brand owners, social media has become a more valuable tool to communicate freely with your existing clients and to reach out to potential consumers. It has become a prime factor today for business owners - turning to Facebook, Twitter, YouTube, Instagram, LinkedIn or blogs to interact with their customer base, in turn providing new challenges for their owners and lawyers as they evolve with each passing day.
In order to ensure that brand owners protect their business assets and brand value, they should take a look at the following available resources for policing and enforcing trademark rights on social media today.
Before you take the plunge onto the social media scene, make sure you engage an experienced trademark lawyer to help navigate the many nuances of brand protection in the digital age and perform a comprehensive trademark search and provide you with a detailed opinion letter to determine the chances to use, adopt and register your trademark. This is one of those situations wherein cost-cutting can really cost you in the long run. So be prepared from the word go.
Regardless of the fact that you plan on limiting your business to a particular jurisdiction or are interested in expanding it to another geographical location, it becomes quite important that you invest your time and money for protection of your trademark via registration. Going on this path, rest assured that you will have the sole rights to use a particular name, logo or otherwise within your industry in turn helping you to claim ownership of the same if a dispute arises.
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So if you spot anyone using your trademarks without proper authorisation on Facebook, Twitter, Instagram or LinkedIn, you’re fully within your rights to put a hold on the said commercial activity that infringes upon your rights. The next step that you can take to protect a trademark is by sending the infringing party a cease and desist notice letter once you spot any offending or unscrupulous activity that dilutes the distinctive character of your trademark or is likely to create confusion for consumers.
Brand owners may explore the need to register a unique hashtag slogan. Hashtags are used these days creatively and help in identifying and facilitating searches for trending topics, key words in turn increasing the internet traffic towards its particular brand. It also serves as an unique identifier for the brands’ goods and services.
Securing a trademark for your username will help to prevent third parties from name squatting or impersonating you and, in all likelihood, deceiving your customers and damaging your brand reputation. If you have the intention of using your username in order to distinguish your product or service from those of others in the market, you may go ahead and apply for a trademark. However, to enable it to smoothly pass through the examination process, your username for your business must be distinct and unique enough.
Brand owners may explore the need to register a unique hashtag slogan.
Finally, do your utmost to ensure that you are not infringing others’ marks. In the context of social media, posting, re-posting, and sharing content (both first-party and third-party content) is particularly fraught with opportunities for trademark infringement. While most social media platforms allow users to freely repost content within their platforms, brand owners often are held to a higher standard than individuals. Thus, using third-party content for commercial purposes is always a high-risk endeavour, and you should be particularly be careful when doing so.
As a trademark holder, one should develop a pre-emptive, systematic and well co-ordinated social media protection and enforcement strategy keeping in mind the risks involved such as acquisition of handles, routine monitoring of user generated content on all social media platforms, protecting your rights and enforcing them in a responsible and pro-active manner and instilling a mechanism in place to tackle and avoid infringement activities.
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Yashvardhan Rana is an Intellectual Property Lawyer with a particular focus on IP prosecution – from registrability analysis and risk management to providing legal opinion on the availability of use, adoption and registrability of trademarks to be launched by Fortune 500 companies as well as top FMCGs in India. He is a part of the Trademarks, Copyright and Design Prosecution team at Inttl Advocare, Noida, India. He also advises on trade mark protection strategies, copyright issues and specific assignments relating to Design Law, certain aspects of strategic brand management and advisory, IP auditing and due diligence to portfolio management, transactional advice and agreement drafting, permitted user/registered user recordals and other procedural compliances.
He is based out of New Delhi and is a member of Bar Council of Delhi, Delhi High Court Bar Association, APAA, INTA and FICCI IP Forum. In January, 2020 he was appointed as an Editor, The Trade Mark Reporter, INTA and in November, 2019, he was the recipient of the Top 50 Emerging IP Professional in the world award - The IPR Gorilla, 2nd Edition held in Dubai. Recently, he has been inducted as an 'esteemed member' of the FICCI IP Forum for IP Professionals to address the existing and evolving IPR issues in India alongwith stalwarts from the legal industry. He has also authored several articles on Intellectual Property Law and Practice which are published in leading blogs, websites, journals and magazines. His educational qualification includes an LL.M. in Intellectual Property Law from the Queen Mary University of London (2015-16).
The Karlsruhe, Germany’s highest civil court, ruled on Tuesday that Facebook must comply with orders from the German antitrust watchdog and change the way it handles data collected from its user base.
The ruling determined that the social media platform requires explicit consent from users before merging their Facebook data with that of third-party platforms, such as WhatsApp and Instagram.
“Facebook must give users the choice to reveal less about themselves – above all what they reveal outside of Facebook,” said lead judge Peter Meier-Beck.
Tuesday’s ruling relates to a legal dispute between Facebook and the German antitrust watchdog that began in February 2019, when the Federal Cartel Office blocked Facebook from collating user data from multiple platforms without user consent. Facebook filed an appeal and gained a suspension of the decision, with a lower court ruling that Facebook did not need to comply prior to a final court decision.
The latest ruling by the Karlsruhe supersedes the lower court’s ruling, thereby ordering Facebook to comply with the watchdog’s terms.
Andreas Mundt, head of the Federal Cartel Office, applauded the decision by the Karlsruhe. “Today’s ruling gives us important clues as to how we should deal with the issues of data and competition,” he said.
In a statement, Facebook made clear that the ruling was not final. “The main proceedings, before the court of appeals, are ongoing and we will continue to defend our position that there is no antitrust abuse,” the company said.
The damage of a car accident can vary drastically. It can be something as minor as a small bump in the back of another vehicle, or it could lead to fatalities. Even the continued improvement of safety functions in modern cars hasn’t helped to lower the statistics of road deaths.
If you’re fortunate enough to only be involved in a relatively minor accident, here are five essential steps you need to take:
First of all, you want to stop the vehicle as soon as possible. If the vehicle remains in motion, this can be classed as an offence.
Once the car has stopped, check if you have suffered any injuries. If you’re able to move without too much discomfort, check on any passengers who may also be in the vehicle. If anyone else has suffered a significant injury, phoning for aid is imperative.
Switch the car’s hazard lights on and exit the vehicle if possible. Get to safety by moving to the path or side of the road.
The damage of a car accident can vary drastically.
With the shock and adrenaline that you’re likely suffering from, it can admittedly be difficult to remain calm. Here are a few pointers to remember:
In the heat of the moment, you can also say things you’ll later regret – like admitting you were responsible for the accident. Simply keep quiet until you’re fully aware of how the accident happened. This can prevent you from liability.
To protect yourself and also prepare for a potential lawsuit, you should fully assess and document the accident scene. Start by taking pictures or videos. Capture all of the damage to both vehicles, and also the surrounding area.
In addition, try and find any witnesses who saw the accident. If they can provide details about what happened, take note of their contact information. If any police officers arrive at the scene, also jot down their names and badge numbers.
The more information you gather, the better.
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It’s also important you exchange information with the driver of the other vehicle. As well as contact details, you’ll need to swap insurance information. Other notes you should take down about the other driver/vehicle are:
In the end, you will have to receive professional assistance in some form. This could be through your insurance agency or, if the situation escalates, a specialist car accident attorney.
Nobody wants to bring an attorney into the picture if they can avoid it, but sometimes it’s a necessity. Plus, it can make you better off financially. The attorney can inspect insurance policies, see if the insurance company is trying to utilise underhand tactics to save money, and they could negotiate a much more satisfactory settlement.
The above five steps are crucial to know in case you ever find yourself in a situation such as this. The most important thing is to remain calm, seek help from professionals for any injuries and then legal aid to ensure that you can stay financially secure, even if you have lost wages.
John Binns of the Financial Crime team at BCL Solicitors LLP asks whether this is this a sensible approach, and what are the potential problems?
‘Getting away with it’
Few would argue with the proposition that there are lawyers, and others who work at law firms, out there who are ‘getting away with’ breaching the money laundering laws. That will necessarily encompass a broad range of ‘bad actors’, from people who are knowingly laundering property for their clients or failing to report them, at one end, to otherwise legitimate firms that choose not to invest in the time and resource to develop a robust AML programme and the expertise, internal or bought-in, to deal with it.
As well as breaking the law, all of these ‘bad actors’ are also harming the profession to some extent - the dishonest by tarnishing its reputation, the corner-cutters by disrespecting a supposedly level playing field. In the UK, this has been an issue for some time. The National Crime Agency (NCA) has been critical in various fora of the relatively low level of suspicious activity reports from solicitors, whom it categorises as ‘professional enablers’. The regulator of the profession remains an independent body, the Solicitors Regulation Authority (SRA), though now overseen by a new statutory body, the Office for Professional Body AML Supervision (OPBAS).
In that context, it is neither surprising nor particularly controversial that the SRA’s new draft business plan, on which it has, for the first time, opened a consultation, commits it to stepping up the fight against these people, by regular visits to ‘high risk’ firms, and spot checks on a sample of the rest, and to reporting back to OPBAS. What possible problem could solicitors have with that?
The potential problems
What does ‘high risk’ mean?
Actually, they may reasonably have at least three. The first of course is that phrase ‘high risk’, which begs the question of how this is defined. Those firms involved in high-end London property transactions for tax haven-incorporated clients should consider themselves targeted, of course, but if the SRA has a list of such firms, it’s unclear how it has been drawn up. Insofar as it relies on firms’ own written risk assessments, now a legal requirement under the UK’s Money Laundering Regulations (MLRs), of course, that simply incentivises bad actors to start misleading the system, and/or themselves, on the first line. Firms that assess their own business as ‘high risk’ are now positively inviting the SRA to come and visit.
Proportionality of action
The second potential problem is about the proportionality of action. The UK’s zealous approach to AML laws means that the SRA has a frightening range of options available to it to deal with bad behaviour, including criminal prosecution – in theory at least – for each and every breach of the MLRs. Faced with that prospect, many solicitors and firms will accept the prospect of lesser sanctions, including fines and public findings, even in circumstances where they might not be objectively justified. The management time and costs of defending a case can also weigh heavily in the SRA’s favour: while a firm’s commitment to protecting its reputation is cutting into its bottom line, the SRA’s incentives are, properly of course, to spend whatever it deems appropriate to protect the reputation of the profession and the public interest.
All that said, of course, none of these problems should prevent a tougher approach to the bad actors in the system, provided it is principled and rigorous and bears all of the potential problems in mind.
The strategy of singling out firms for a fine-tooth comb review of their compliance, either because they are ‘high risk’ or thanks to their name being unluckily picked from the SRA’s random-sampling hat, therefore inevitably raises the prospect of arbitrary enforcement. In a perfect system, the SRA would be able to select the objectively ‘worst’ cases – the dishonest, and the wilfully non-compliant – for the harshest treatment. But the risk from the visits system is that it creates a smorgasbord of low-hanging fruit, enabling the SRA to increase its number of resolved cases each year, while leaving the unvisited worst actors unaffected. That may, of course, create a visible deterrence to encourage other firms to raise their game, but it remains arguably unfair to those targeted.
The importance of independence
The third potential problem is about independence. While the SRA, of course, remains separate from the state, in this context it is overseen by OPBAS, whose critical overview of professional regulators, in general, must surely have influenced this latest announcement. There must be a risk that its thinking in this area will not just be about which laws, if any, have been broken, to what extent and with what motivation, but also about the perceptions of the NCA and others within and allied to the government – which nowadays includes those representatives of the banking sector that sit on the UK’s Economic Crime Strategic Board and make policy alongside them – about what is important and worthy of attention. That is not necessarily the right result.
Enforcing the EU’s Sixth Directive?
All that said, of course, none of these problems should prevent a tougher approach to the bad actors in the system, provided it is principled and rigorous and bears all of the potential problems in mind. On the point about rigour, it is surely unfortunate that the draft plan appears to commit the SRA to enforcing the EU’s Sixth AML Directive, from which the UK has, in fact, exercised its opt-out (quite independently of the Brexit process). It is unclear if this is simply an error, in which case it does not exactly inspire confidence.
The alternative is that the SRA has something else in mind, in which case it is unclear what that could possibly be. Conceivably, the UK government has its eye on the European Commission’s plans to set up AML enforcement, and has enlisted the SRA’s help to ensure the UK is seen to keep pace, and that its firms retain their equivalent status for the purposes of EU firms’ due diligence. That could mean the effective introduction of a new requirement on regulated firms to prevent money laundering, via the back door of regulators’ enforcement actions, rather than the front door of primary legislation. That is speculation of course, but a neat illustration of why the points about arbitrariness, independence and rigour really matter.
What to expect from the consultation process
The bottom line, given all of the above, is that the consultation exercise is sensible, and that those affected would be well advised take the opportunity to respond to it, by the deadline of 26 August 2020. That may, and hopefully will mean that some of the problems will be ironed out by the time the final plan comes into effect.
Undeniably, meanwhile, those solicitors and firms in the UK that don’t yet have a robust enough AML programme, not only but especially those that could be considered ‘high risk’, should take the hint. While they may not consider themselves among the ‘bad apples’ properly in the SRA’s sights, and whatever the outcome of the consultation, the likelihood of their systems coming under its close scrutiny has undoubtedly just increased.
John Binns is a partner at BCL Solicitors LLP in London, specialising in AML compliance and enforcement.
