The Law on Swearing - Rooney Beware!

When you or I let out a string of expletives (c'mon - we've all done it!) it's usually because we've just stubbed our toe, had some bad news, are stressed or any number of other minor reasons that affect us all in our everyday lives.  Most of the time we're in the privacy of our own homes or with friend or family who we know won't take too much offence (or will take us to task in a relatively relaxed way about it!).

But what about people who swear (usually loudly!) in the street?  The issue is even more relevant when a footballer of some repute (and who might be argued to be a role model for thousands of fans) swears directly into a television camera which will clearly be broadcasting to millions.

Of course in that particular situation, the FA has taken some action - in the same way that if I were to swear at a client the Law Society would probably have something to say about it.

But there's an argument that an example should be made in these situations - a sense that public figures who earn millions of pounds and who set their stall out both as role models and as spokespeople for certain brands of food, sporting goods and other merchandise should at least be treated in the same way as you or I would be treated in those circumstances.

So is it against the law to swear?

Well, yes and no.

Section 5 of the Public Order Act 1986 make it an offence to

(a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) display any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress

There are three defences :-

(a) The defendant had no reason to believe that there was any person within hearing or sight who was likely to be alarmed or distressed by his action.

(b) The defendant was in a dwelling and had no reason to believe that his behaviour would be seen or heard by any person outside any dwelling.

(c) The conduct was reasonable.

So it's OK to swear at home (as long as all your windows aren't open with the local children playing outside) (phew!!) but not in the street in front of old ladies.

In an age, though, where we're becoming more used to (and accepting of!) the use of language which would, even 20 years ago, have been found to be wholly unacceptable by society in general the issue of whether a person is likely to be caused harassment alarm or distress is a bit of a movable feast!  Generally speaking the courts apply the test of the "man on the Clapham omnibus" - that is to say whether an "average" person would be offended.  Again, though, the "average" person changes as society as a whole changes.

Is it arguable that the millions of people who saw Rooney swear to camera were all likely to be football fans who would be used to, and indeed expect, that sort of behaviour in the heat and excitement of a goal celebration?

Well maybe - but then again the chances of every single person watching the TV at that point being over the age of 18 are, I suspect, slim to none.

And even if the offence has been committed, the level of fine to a footballer who earns what Wayne Rooney earns is far less significant than a ban from playing a game which he clearly lives for - so perhaps the punishment meted out by the FA really does fit the crime in this instance.

There's arguments both ways of course - that Rooney should be subject to the same punishment that you or I would be subject to for swearing at an old lady in the street.  Justice should, after all, not discriminate.

I would expect that that won't happen though - just don't use it as an excuse to vent your anger in the local shopping centre next time the queue in M&S is too long!

Social Media Nightmare!

The employment tribunal has recently decided that an employer was within its rights to dismiss an employee who had sent an offensive email to a fellow employee - even though the email was sent from the employee's home computer to the colleague's home computer!

The simple fact that the email was not sent via, nor received by, the employer's computer system did not, in the view of the tribunal, mean that the employer had any less right to protect its reputation.  It does, though, create real conflict between the employer's rights and the right of the employee to privacy outside the work environment.

Beware Facebook entries!!

The end of auto renewable contracts?

Ofcom (the communications regulator) has started a consultation into a proposal to outlaw contracts which automatically renew at the end of their term and which tie the customer into a minimum repeated contract term.

The idea behind these contracts is that the customer has to "opt out" otherwise renewal takes place automatically.  Once automatic renewal has occurred then there is usually a penalty to terminate the contract early.

BT is the main provider of "rollover contracts" although several other suppliers also use them, and Ofcom estimates that 15% of UK consumers are subject to these contracts at present.

The consultation ends in May this year so with luck we might see the end of these sorts of arrangements shortly after!

Valuer's duties to borrower clarified

Traditionally if your mortgage lender instructs a valuer to value a property you intend to buy, the valuer only owes a duty of care to the lender and not to you.  That is to say, if the valuer gets it wrong then only the lender, and not you, can do anything about it.

However, in the recent case of Scullion -v- Bank of Scotland plc, the courts have decided that in some circumstances the valuer is liable to the borrower too!

In that case, the buyer of a buy-to-let property suffered a significant loss because the bank's valuer had overstated the value of the property and how much rent the borrower could expect to receive.

The judge said that he had taken into account the following factors :-

1.  That the property was a residential property and not a high value house or commercial property where it might be expected that the borrower would have had a separate survey carried out.

2.  The valuer was a professional valuer who should have known that the borrower would have seen the valuation and would have relied on it.

3.  The borrower was not a professional developer and was no different in that respect from the purchaser of a residential property to live in.

The court awarded the borrower the sum of £72,000.00 to compensate him for the fact that he was not able to let the property for an amount sufficient to cover his mortgage payments.

This is good news for the first time or infrequent property investor whose resources may not stretch to having costly surveys and valuations carried out on standard residential properties, but shouldn't be relied on by professional developers or investors whose resources (and experience) are not limited in the same way.

Beware that casual "just go ahead"email!!

The Court of Appeal has just awarded damages of over £10,000.00 to a firm of estate agents due to a breach by the seller of a property of the agent's sole agency agreement.

The unusual feature of this case is that the agency agreement had been entered into by emails between the seller and the agents.

The agent had sent the seller an email with both their multi and sole agency terms and conditions and the email went on to state that after a certain date the seller would market the property through the agents on a sole basis.

The seller replied with an email which basically said "that's fine, look forward to some viewings".

The property was eventually sold by another agent who had previously been marketing the property on a multi agency basis.  The first agents claimed their fee.

The Seller argued that there was no contract - she said that she had not fully read the e-mail or the sole agency terms and conditions and that it had always been her intention to market the property through several agents.

The Court of Appeal decided that there was a contract brought into being by the exchange of emails and that the sale by the other agent had deprived the sole agent of the chance of earning commission on the sale.  The Court therefore awarded the agent the full amount of its lost commission by way of damages.

The seller therefore effectively paid 2 lots of estate agent's fees and was also landed with a fairly hefty legal bill!

The great thing about email is that it makes instant communication astoundingly easy.  The bad thing about email is that it makes instant communication astoundingly easy!  Be wary about landing yourself with an obligation you never intended just with a quick click on the "Send" button!

Celebration time for Estate Agents?

The Department for Business, Innovation and Skills has announced that it is to consult on a proposal to repeal the Property Misdescriptions Act 1991. (

Under the Act it is an offence for an estate agent to make any statement (usually in the sales particulars) which would mislead a potential buyer or which is simply untrue.

 

The Act covers matters such as location, views from the property, measurements and size of rooms and garden and structural matters.

There is therefore a considerable degree of overlap between the Act and the Regulations - and indeed the powers of Trading Standards under both are very similar.

This has lead to calls for the Act to be scrapped and for customers of estate agencies to rely on their rights under the Regulations instead.

However, whilst the two sets of rules do indeed provide similar protection to consumers, it should be stressed that the protection is not identical, and added to which there has been, over the years, a considerable amount of case law flowing from the Act which gives Trading Standards and the Courts a degree of guidance as to the interpretion of the Act which simply is not available under the Regulations, given that they are relatively new.

We can only hope, if the Act is repealed, that Trading Standards and the Courts will continue to apply the same standards of enforcement which have been available to consumers under the Act.  If not, the days of "compact and bijou" may make a return!

If you would like to have your say on the consultation, it is open until 5th April 2011

If you'd like to comment on this or any of the other posts in the blog, just type it into the box below the relevant post and click the " Post Comment" button.

Limitation on extent of legal privilege confirmed

Confidentiality between client and lawyers is one of the bedrocks of the way the legal profession works and something that clients have always taken for granted (and indeed should be able to!)

One of the rare instances when that confidentiality does not apply quite as clients might expect is the situation in which their lawyer is acting not only for them but also for the mortgage lender in a property transaction - this happens in about 95% of cases.  If mortgage lenders routinely instructed separate lawyers then the costs of buying property would increase significantly and this is why mortgage lenders are happy for the same lawyers to represent their interests and the interests of the buyer.

What happens, though, where for example the buyer ultimately defaults on the mortgage and the mortgage lender requests the lawyer's file?  Many clients assume that the file cannot be released to the mortgage lender because of the confidentiality rules and that even if some papers can be released, then those released are limited to such documents as directly involve the lender.

However, the High Court has now confirmed that borrowers have waived their right to legal professional privilege over those documents in their mortgage files that may otherwise have benefited from that protection. The reason being that the borrower will have signed a mortgage application form which contains a declaration consenting to the whole file being handed over to the lender on request!

The case is a useful reminder to both lawyers and clients that signing a standard form which is as simple as an application for borrowing can have consequences which last well into the future.