Wednesday, January 28, 2015

Happy Birthday to Me - Je Suis Lesley



(Click on the image to make it bigger)

My cartoon is not meant to be offensive but to get a message home.  It depicts a cartoon of a dog with the face of Professor Richard Susskind OBE on it, in the dogs kennel saying "Woo_f".   This is meant to reflect that the reason why he is in the dogs kennel is because he took a "management decision" to sack me going against his own learning as a Professor of Law and Philosophy, ie the application of the rule of law in my contract of employment.  As such he went against the lawful application of my contract and then subsequently tried to conceal the information from court documents via organised crime and corruption.  He did pervert the course of justice on the Lesley McDade v Masons case which became certain at the EAT stage when the judgment does not contain 5 case precedent referred to in the appeal documentation - and you can only appeal on a point of law - one case precedent stated verbatim to the judge. So there is no excuse for concealing the case including by giving an ex parte preliminary hearing instead of an appeal hearing which is part of the Woolf Reforms methodology of providing "Access FROM Justice" instead of access TO Justice which the Woolf Reforms were promoting to the public.  This may be also misconduct in public office including by the judge His Honour Justice Morison and other judges.  No one has yet been held accountable and the police refuse to deal with the crime.  As such I appear to have no rights in society.  Whether Lord Woolf impacted on the case per se is not known.  Whether Masons impacted on the Woolf Reforms is also not known - but the police could investigate to find out!

Which brings me nicely on to the second part of the cartoon.  Justice in the form of a Japanese Manga cartoon.  The Woolf Reforms brought into the justice system, mediation.  However, a deception was occasioned, ie that people are getting "Justice" and "Access TO Justice".  When you issue a writ, you are effectively asking for your lawful rights in society to be upheld by a Judge.  With mediation in the system, sometimes called "informal justice"/"Alternative Dispute Resolution"/"Informal Dispute Settlement", you are actually getting COMPROMISE of your rights.  Now perhaps you can see the deception - you ARE NOT GETTING JUSTICE.  With mediation the judge does not decide the dispute, the parties do. Only a JUDGE can deliver Justice which they are supposed to do "independently - without fear or favour".

On my third litigation, I entertained doing the Woolf Reforms and mediation - when in Rome etc etc.  It was supposed to happen very early in litigation as an intervention, but in my case, Respondents' solicitors would only consider mediation 10 years into the litigation - that does not mean it was not asked for early on in proceedings.  Whenever you see mediation being used you know there is going to be a cover-up and parties are gagged by confidentiality clauses - creating a hidden society or privatisation of the case!  In my case, a compromise of 10% was proferred - this is NOT Justice and my rights being upheld, this is compromise of my rights.  I did not agree with it and went to litigation.

In the litigation, I told the judge of the organised crime and corruption on the LDM v Masons case as the papers formed part of the SJ Berwin case and may have extended to my time at S J Berwin & Co through the circumstances of the treatment I received over a 2 1/2 year period.  A lot happened at a point in time in 1996/1997 which has to have an explanation, ie a complete "failure to act" by those whose sole purpose is to act! which may be a conspiracy of silence/failure to act.  The Judge, Sir Robert Owen QC refused to hear any case reference to organised crime and corruption.  This did not bode well for my continuing the case but I did so albeit I was completely thrown by his conduct.  I now, in hindsight, consider he was not acting independently without fear or favour and have already drawn the conclusion that the case is another miscarriage of justice.  He could not find breach of contract, professional negligence, personal injury or sex discrimination even although my boss admitted that at 6 months into the contract we hit a disaster and I was treated from then onwards as a "general paralegal not a legal paralegal" even although this was not of my causation nor informed to me directly - the £200 million misrep action I was working on settled and my boss was without client work.  Knowing something was up I whistleblew my contract in a whistleblowing lecture at 2 1/2 years into contract out of 3 years, the evidence was in the court bundle and detailed in a witness statement as was the exact issues of sex discrimination detailed clearly and succinctly.  My contract was upgraded as a consequence of whistleblowing albeit no one said I was a general paralegal not a legal paralegal! The judge claimed to have read papers.  Also, contrary to the position that I was a general paralegal not a legal paralegal - I had on the basis that I was forced to fend for myself because of a complete lack of line management towards me, got work in the Environment Department working alongside a trainee doing the same job as the trainee; been seconded to the EC Law Department for over 6 months to work on tranche 2 of a £24 billion global merger creating Diageo plc including dealing with discovery on a £1 million arbitration dispute on the project; and via the Advocacy Department worked on preparing witness bundles for four mercenaries on the Sandline Arbitration as well as other small pieces of "legal paralegal" work: so whilst my boss thought I was a general paralegal and failed to line manage me, I was actually a legal paralegal doing legal work: so why did the judge fail to find that I had been treated less favourably than my male comparator Elie Zekaria, an employee, or even Solomon Wifa, a temp worker.  This was further indirectly evident from performance figure information.  I can only presume because he was not independent or someone else was operating behind the scenes on the case as an unseen hand.  The Judge even fabricated information on the case in his judgment.  I was not impressed.

So whilst I was proferred 10% of my damages and losses through mediation, and I opted for Justice - my rights to be held absolutely by society and not compromised - we can only live in a just and safe society if our lawful rights are applied by a Judge - and in my cases x 3 this has not happened.  As such, I have experienced much loss and abuse over a 20 year period which continues to this day.  I have now asked the Prime Minister/Lord Chancellor/Home Secretary for a public inquiry concerning my cases and research as a narrow issue OR to consider other cases by litigants in person in the courts who are having similar or same problems as myself since the Woolf Reforms were implemented OR to go very wide and consider cases by any litigant whether they are lawyered up or not concerning miscarriages of justice since the Woolf Reforms (approx 1997 to date).

I am moving on with my life now to some degree but I do several things in society to hopefully progress society and keep us safe.  I do from time to time complete consultation papers, not so much in England & Wales and you might like to take a look at this site and pick something that interests you: https://www.gov.uk/government/publications?publication_filter_option=consultations: I tend to do Scottish ones : http://www.scotland.gov.uk/Consultations/Current.  There are even European Ones: http://ec.europa.eu/yourvoice/consultations/index_en.htm.  So if you want to shape government policy pick something you like and put forward your thoughts and ideas - you might make a difference. (Take a look at the published responses to SNAP, the Scottish Human Rights Commission Consultation a few years ago to get an idea of what you can expect to see and cover http://scottishhumanrights.com/actionplan/participation.  All Consultations are published but you can put in a private response if you want to or published anonymous response).  I like to thank the Government or body for letting me take part in the Consultation, sometimes I answer all the questions, sometimes I only answer a few questions or sometimes I put in a general catch all response.  Nothing ventured, nothing gained.

Recommendation: As a tip, a good website to use to write to your MP, MEP, MSP (devolved), Councillor or any Lord who may be doing something on a given topic you may want to say something on or provide evidence to is www.writetothem.com.  It operates on your postcode, lets you fill in a template, then you go to your email inbox and click the link by way of electronic signature and hopefully two weeks or so later you will have heard from the person you contacted, if not, the website emails you a link to ask if you have or have not heard from them and provides a link to chase.  Bear in mind, when writing to another MP who is not your own MP there is a protocol that you must write via your own MP, especially if it is the PM that you want to reach, you may have to wait a bit longer for a response from another MP who is not your own MP.  This website also tracks your MP in Parliament and provides information and analysis.  It also has a little program called "Fix my Street" which is very useful concerning potholes and poor lighting.

So if you, like me, are not really into protests and marches, the last and only one I have been on is Oxfams "Make Poverty History", then perhaps you may find it useful to do Consultations and write to your MP.

In the event that you may be interested to support my Public Inquiry request, my MP is Danny Alexander, who is a Cabinet Minister for the Libdems for the Highlands of Scotland of Inverness, Badenoch & Strathspey.  A very busy man, but please let him know if you want a public inquiry on the Woolf Reforms on litigation which are miscarriages of justice or that you are experiencing problems getting your rights upheld in England & Wales or issues of mediation.  You may be contacting Chris Grayling, Lord Chancellor or Theresa May, Home Secretary or David Cameron, Prime Minister but protocol requires you to go through your own MP and perhaps you can let him/her know that Danny Alexander MP has the original request in that regard.

Compromise is on the agenda in Europe big time yesterday.  On the issue of Greece, well you have certainly grasped the nettle:  what I prefer in society is that people honour their contracts, not breach them and where they do that that the rule of law is applied in a safe and just society.  Compromising rights, means that we are less safe and just, tending towards savagery and I infer when that happens we are not far away from war.  However, in the political domain "compromise" is a useful tool when you have no rights to actually get something - gold will be left on the table.  I fully realise the Greek people are hurting with 25% unemployment and 50% youth unemployment.  I agree austerity is not being operated properly commonsense can tell you that.  (In the UK the point of equilibrium is possibly not set properly between deficit and borrowing.  It does not make sense that you should half the deficit but your borrowings should go up.  With the Conservative government holding the majority in the UK privatisation/contemporary/alternative and modern/new may be being disguised as austerity, such that the Government's austerity measures go too far, especially if we are being penalised by Europe).  Austerity should make commonsense and with a 25% unemployment rate amongst adults in Greece that does not make sense as you need to tax a worker to cover borrowings even on a minimum wage: therefor the cuts have probably gone too deep in Greece and the UK should take note.  (I have asked the UK Prime Minister David Cameron for a Regulation to impact in the whole of Europe outlawing the concept of ADR/mediation and gagging clauses from the public domain especially the courts as part of his EU reform agenda - I consider this to be necessary to keep Europe safe and just).

Its about time I gave you a more up-to-date picture of me, as most people know my blog image from age 25.




Cheers, long life and happiness.  Happy Birthday to me - Je suis Lesley, je suis cinquant annees aujourd hui!


Tuesday, January 27, 2015

ADR the Achillies Heel of a Democracy

We have all heard the terms "separation of the powers" and "Justice must be done and seen to be done". But do we really know why these axioms exist in civilised society?
Well the separation of powers is between law and politics. That is to say "natural law v posited law". Natural law is the little bit of reasoning (ratio decidendi) of a case precedent. Posited law is the rule of law contained in a Statute as made by the legislature on the back of the people (citizens/subjects of a country). Natural law is what the law "ought" to be and posited law "is" the law. Simple you might think from time immemorial.
Unfortunately, if the balance between judicial reasoning and legislature does not happen, then I argue, neither does democracy. Why, if no cases challenge or reiterate the rule of law at common law (case precedent) or as contained in a statute, then law stagnates and becomes political "is" law.
Assuming the will of the people is always adhered to then law "should" be "good" law to regulate all citizens. However, not all politicians are ultimately good and not all societies are ultimately good either.
Therefore, to unbalance democracy all you need to do is to prevent either Justice not occurring or the legislature to not occur. But it is not as simple as that. Justice is fundamental to democracy. Why, because "Justice" sets the standard of reasonableness to what the rule of law "ought" to be and this can occur objectively or subjectively via the equitable discretion of the judge.
In a democracy, the standard of reasonableness is determined to be equality, fairness, impartiality and justice. Therefore Justice is the "ultimate" and is "fundamental" to democracy. Stop "Justice" and you prevent equality, etc.
Currently in England & Wales, and America a Japanese concept called ADR (Alternative Dispute Resolution) is being contained "within" the judiciary and legal profession. It is being premised as "access to justice" and is contained in a Directive on Mediation which is going to impact on the Scottish and European legal systems, except Denmark who have abstained.
The problem with ADR is that it does the "opposite" and removes the case from the path of access to justice, where the parties may not experience equality, fairness, impartiality or justice. The difference is that the judge is never a mediator and the mediator is never a judge. As such, something is occurring to democracy that is being falsely premised, the issue remains – why?We have had "regimes""regime change" and "change management" in the last decade within UK politics – from what to what? (Liberalisation!).
Now ADR is a Japanese concept and as such it is used culturally to "save loss of face". In Japan litigation is a "last resort" concept. Japanese culture is based on confidentiality agreements and gagging clauses covering up who knows what. Japanese society is therefore largely "hidden". This by contrast is not how Western society is, our courts are "public" and the light of day shines into its darkest reaches most of the time.
Anyway, I recently spoke to a Scottish mediator and he informed me "but 97% of cases settle without trial": therefore 3% make it to Justice and impact uniformly on society. Just 3% is necessary in order to ensure that British society exists as a democratic society where society is deemed to be civilised, safe and just. (I am surprised, maybe closer inspection needs to occur concerning this statistic!) Therefore why do ADR’sts want to have ADR "within" the judiciary and legal profession and potentially impact on 3% of cases that fundamentally must go the distance when ADR "outwith" the judiciary and legal profession and with freedom of choice and the equilibrium of the dispute market they have potential to access 97% of cases: that should be sufficient.If, 97% of disputes "settle" before trial, this presumably is why Woolf claims (1) equality and (2) access to justice. Settlement is potentially divided into judiciary ("traditional equality") and mediators ("contemporary equality").
Either the judge decides or the parties decide the outcome of the dispute. Therefore contemporary equality is 99:1; 60:40; [50:50]; 30:70; 1:99. The fact that it is possible for traditional equality and contemporary equality to be 50:50 presupposes that mediation does have some "good" quality, howsoever, unlikely the parties will settle on this outcome may be in reality. With mediation there is disempowerment especially where psychological techniques are used: "gold will be left on the table" – there must fundamentally be a benefit to all parties – win/win rather than win/lose via the judiciary. The difference is that judicial equality provides compensation (monetary value), mediation may provide redress, ie the remedy may have a different weight.
As such, I advocate the "Competition model" for Scotland and Europe: (1) judges, lawyers and barristers NOT permitted to practice ADR – because their sole role in society is to uphold the rule of law!  (2)  A professional body of mediators akin to the Law Society/Bar Council, and (3) A mediation centre in every town/city where there currently exists a court.  That is to say, that the competition model would separate litigators from mediators. The market would determine who got the disputes and in what percentage on the basis of freedom of choice. ADR would exist in a democracy and so would the rule of law.
However, of concern to me is how ADR is being processed in society. The English & Welsh model was processed by the Woolf Report which became the Access to Justice Act 1999 and CPR Rule 26 processed ADR "within" the judiciary. The Woolf Report stupidly in my view informed "litigation will be avoided whenever possible" ambiguously in a report entitled "Access to Justice" (Annex 1). Therefore it is clear that something intellectually was deficient concerning the processing of ADR within English/Welsh society – or was it? If we are being "change managed" to some other political state then the judicial and political elite would be acting deliberately rather than inadvertently.Furthermore, the Scottish Executive have been processing the Directive on Mediation at European level. A consultation paper on the subsidiary principle via Arlene McCarthy MEP saw 2 out of 27 published responses interviewed and as my response proposed the Competition model and was not therefore the proposed model, it was perhaps biased or prejudicial to not also interview me on the premis that you ought democratically to interview for and against your proposal. 5 further "experts"! were also interviewed, effectively rubber stamping an already settled outcome.Therefore, it would appear to me that I am making the case that "democracy" is being dispensed with politically as well as judicially. – because of ADR - Why?Surely, there is a need to take a step back and look at the models (do an evaluation) – English & Welsh, American, Japanese and for good measure the Danish before impacting on Scotland and Europe.
So to recap – ADR is the "achillies heel" of democracy because:
It is being processed as something it is not and never can be because it is "opposite" to Access to Justice, ie Access FROM Justice: compromise.
It upsets the finely balanced mechanism between natural law and posited law and if judges do not "reason" then society stagnates in a political quagmire.Even the political domain cannot process a consultation fairly proving that "standards" in society have subsequently lowered.
ADR "undermines" the rule of law because it gags society at the individual level and prevents law being uniformly applicable.
The Japanese process ADR as a cultural feature to their society, we are processing it because it is cheaper and quicker than litigation (not necessarily true) – so revamp the litigation process to the 21st Century using IT! and "improve" on a 3% statistic.
Do you want to exist in a safe and just society – with ADR contained "within" the judiciary – just what society are you expecting? What should the international symbol of "Compromise" look like?
1 - Access to Justice Table re Woolf (worth downloading)


References:http://www.dca.gov.uk/civil/final/contents.htm
Woolf Report - Access to Justice
http://www.europarl.eu.int/comparl/juri/consultations/default_en.htm
Published responses to the Consultation Paper on the Subsidiary Principle concerning the Directive on Mediation 2004 718 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=191867
Lesley Diane Mcdade (Miss) 29/10/2007