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In Need of Better Regulation? Practical & Legal Issues Arising from Buying Antiques at Auction

Appreciating the Dangers of Buying at Auction

It is not difficult to find material (including guides) extolling the virtues of buying at auction. Certainly the amount of TV programmes showing auctions, and the greater accessibility to buy at auction online, demonstrate the attraction of auctions not only to the trade but to the public more generally. Motivations will vary, but there may be a view that items are likely to be cheaper at auction than in a shop; that buying at auction is more likely to achieve a more accurate market value; and it’s also fair to say that it can sometimes be a thrilling experience: searching for that “sleeper,” the unpredictability and the gamble involved in any bid. Having bought a fair amount at auction for the last 25 years, and also sold a few pieces, the purpose of this article is to highlight some of the less attractive aspects of buying at auction that do not seem to get very much (if any) coverage. (Regrettably, the Antiques Trade Gazette declined to publish the views expressed in this piece, maintaining instead its own auction guide that was rather more flattering to auction houses, that also happen to advertise with it.)

Auction Charges & Sale’s Commission

In years gone by, it was the seller that just paid a commission (as well as other charges) to the auction house as it acted as the vendor’s agent in selling the item, but gradually over at least the past 30 years, most auction houses now also charge a commission to the purchaser known as a buyer’s premium. Such charges vary, but auction houses commonly will be reaping a total commission of around 1/3rd of the price that an item sells for.  The similarity in charges between auction houses, as well as the importance of bringing them clearly to the attention of consumers, has prompted various regulatory investigations in the past.

Broadly speaking, this level of commission  makes auction houses look more like retailers than mere auctioneering agents. Indeed, when you see auctions on view, such as “house and garden” sales, where the items are displayed like some room set, the physical impression of a shop can even be conveyed. When buying online, it should be noted that a further 3% plus VAT might be levied.  In contrast to a shop, however, the raft of terms and conditions relied upon by auction houses – attempting to exclude almost any responsibility for what they do – makes you wonder exactly what you are paying a buyer’s premium for.

Estimates

Most auction houses publish a bracket between which the hammer price might be expected to fall, called an “estimate.”  The reserve should not be more than the estimate, otherwise the auction house is being misleading in suggesting the possibility of a sale at its lower estimated figure. Estimates can be helpful provided you don’t forget that the sum that you actually pay will also have the buyer’s premium added & normally with VAT applied on that premium too. In a guidance note, the Advertising Standards Authority Ltd (ASA) suggest that the guide price should be followed by a statement of any percentage buyer’s premium applicable, including VAT. (Personally I felt that this guide could be clearer as the section entitled “How should non-optional fees be displayed” seemed to be at odds with later sections.)

You should also be aware that auction houses can frequently put estimates at a very low level to encourage interest. This can lead to some auctioneers declaring  (rather irritatingly) that an item is going “very cheaply” despite the fact that it still falls within their own estimate. Therefore, if you really want an item, be prepared for the fact that its “value” is greater than the estimate & that any absentee bid you place, is pitched at the right level.

Catalogue Descriptions & Rights of Redress

The terms and conditions are often quite clever and, to the lay person, the intricacy will not be obvious. They are quite obviously designed to protect the auction house. They make clear that they are only acting for the vendor, lest it might be said that they are assuming some obligation to the buyer who is (for no express reason) also paying a commission. The intention is that in cataloguing an item, supplying a condition report to a potential buyer or in arranging a telephone or absentee bid, these fall into some “free service” for which the auction house has no responsibility to the buyer (at least) for getting right: this often also being expressly spelt out. Commonly the auction house will design its clauses to prevent any duty arising in the first place and, for good measure, then exclude any liability that might arise were a duty to be found.

Because the law sets out differences between someone expressing an opinion and someone saying something as a fact, the terms and conditions also have a standard clause that auction houses are just expressing opinions about what an item is; who made it; its age or condition. Opinions, of course, can more easily differ (although someone should still have reasonable grounds for forming whatever opinion they do express & can be held liable if they don’t.) Further, buyers are told that they should inspect an item personally at the auction house and make up their own minds, and that things are sold “as is”: all further watering down the possibility of the auction house being held responsible for anything that it says. I don’t think that this is fair and it’s also at odds with general consumer expectations.

The reality is that auction houses will have had every opportunity of looking in detail at an item that it puts up for sale (including photographing it, although often without illustrating the blemishes) and frequently will have been able to talk to the vendor. Indeed, many auction houses trumpet their expertise on their website and how long they have been in business. Auctioneers will even frequently coax buyers along when actually selling with comments like “it’s a super lot this;” “it’s in excellent condition;” “it’s a fine lot this one” as they appreciate this all goes to help persuade someone to bid and buy. Yet their small print all attempts to exclude liability for these assurances. Auction houses are in a far superior position than a buyer. High standards should be expected and they should be held to account if they get it wrong. (In their coaxing, auctioneers should be wary that they may go too far: Andrews v Hopkinson 1957 1 QB 229 “it’s a good little bus, I’d stake my life on it,” the Vendor was held liable for its defects.)

Unfortunately, and it happens on a fairly frequent basis, you may also receive a condition report that fails to mention what seems to you – when you have an item delivered- the blindingly obvious. The condition report on an item may well be given by someone inexperienced at the auction house who can’t tell if an item is 17th century or something that has been knocked up in that style in the last 20 years; that there is extensive restoration or gives such a bland comment – “knocks and marks consistent with age”- which doesn’t tell you anything. But with auction houses permitting bidding online to buyers all over the world, who clearly can’t personally inspect an item, this lack of care and exclusion of liability must surely fail if tested in court. Sometimes I feel that auction houses could learn a bit even from the expectations on the Ebay site that all defects should be described on every item sold. Yet only recently, I had an auction house relying on an exclusion clause when I bought over the telephone and their catalogue description turned out to be inaccurate. The best I got was a refund in the buyer’s premium as a gesture of goodwill but still felt saddled with the item. I do believe that had I bought the item from a shop, I would have been better positioned to ask for a complete refund.

There are various statutes that may assist a buyer in attacking the exclusion clauses of auctioneers, or holding them responsible including (in the UK) The Consumer Rights Act 2015 (replacing The Unfair Contract Terms Act 1977 & the Unfair Terms in Consumer Contracts Regulations 1994); or The Trade Descriptions Act 1968. Unfortunately, the Consumer Contracts (Information, Cancellation & Additional Charges) Regulations 2013 (formerly Distance Selling Regulations) do not apply to auctions. In Jersey, the Supply of Goods & Services (Jersey) Law 2009 and associated 2010 regulations will be relevant. Whether or not the buyer is acting in the course of a business may be relevant to which particular statutes or provisions apply. The Office of Fair Trading (which regrettably closed in 2014) has many years ago reviewed the terms and conditions of auction houses and provided a valuable analysis of what terms would be regarded as fair and reasonable. It suggested that auction houses should, for example, accept liability for their negligence when providing a condition report or in failing to execute an absentee bid.

At the end of the day, however, with the complexity of the law, it can easily feel that the auctioneer is in a pretty fortified position with only reputational damage being the simplest and cheapest weapon for an aggrieved purchaser to threaten. (If the auctioneer belongs to a professional body, a complaint in this direction might also help.)  I have a number of auctioneers I trust and go back to; others I steer well clear of, having had my fingers burned, sometimes on more than one occasion when I thought I had just been unlucky the first time around. I do believe that auction houses need better regulation given the broader clientele that they are now attracting; the online method of bidding; and their superior bargaining position when compared to consumers, who can often be very inexperienced.

As a rule of thumb, therefore, never be tempted to buy a lot that you have not seen in the “flesh” without at least having the precaution of a condition report and asking for additional images. That way, you may be better informed and have more chance of redress if required. I regret to say that even then, it’s sometimes only once I get a piece of furniture home and start polishing each bit of it, that I see all the faults and restorations. But it’s generally too late then!

Absentee or Commission Bids

“Commission” or “absentee bids” can be left with the auction house if you cannot attend and the basis of such bids is that the auction house will try and secure the item as cheaply as other bids (including the reserve) permit. There is an element of trust here, because obviously the higher the end price, the more commission the auction house makes. I confess that with some auction houses, when I have listened online to events, I have suspected that they have simply started off with my absentee bid (with no other bids on their books) but you have no real way of establishing the position and, absent issuing a legal claim, no right to look at the books. A more subtle difficulty is where the item is subject to a reserve but the auctioneer has a discretion, say of 10%. If the auctioneer is also executing an absentee bid that is equal to or more than the reserve, it’s an easy outcome for the auctioneer simply to bang the hammer down on the reserve price (wrongly in my view) rather than the 10% lower sum that he could have accepted. Given that the auctioneer has confidential information for both buyer and seller, absentee bids should be executed by a separate person at the auction house under what’s called a Chinese wall so that this conflict does not arise, but this is unlikely to happen at smaller auction houses. In any event – and for some reason that I can’t understand- this obvious impropriety seems not to have provoked any regulatory intervention.

Even where there is no reserve and no other bids, auctioneers do not necessarily just start at the lowest bid possible when selling an item, such as at £5 or £10, but can gear it to the estimate, plucking a low figure and starting your absentee bid at that. This is in breach of their terms and conditions which normally state that they will buy the item as cheaply as other bids or the reserve permit: in this instance, none being applicable. I have heard one auctioneer (who also appears on TV) selling an unreserved £500 estimated item stating on the rostrum “You won’t see many other auctioneers like me starting this off on commission as low as £50.” I wanted to ask “why not?”

Another auctioneer refused to accept a bid in the room on an unreserved item, saying it was up to him to decide how low to go and he could refuse to sell an item at all so as to protect the vendor. In practice, I suppose it’s only the vendor that could really complain if they wanted a sale and, despite the vast array of terms and conditions, I couldn’t find one covering this, but I’m not sure the auctioneer was right. For instance, had the auction house accepted an absentee bid on the normal basis for execution, how could that auction house then refuse to honour its obligations to execute the bid & as cheaply as possible? Further, were the auction house to have represented or advertised to potential buyers that it was selling items at no reserve, the would-be buyer might have additional grounds for complaint. (In this particular case, the irony was that the item sold at an even lower price in the following sale, but the poor vendor will probably never have known what went on, & I doubt the auctioneer will have volunteered the information.)

Interestingly, traders in particular will cultivate relationships with the porters at auction houses who may enter into what appears to be a private agreement to execute that trader’s commission or absentee bid that otherwise will not appear or be seen on the books of the auction house. In return they are “bought a drink” by the trader, particularly if they secured the item advantageously. This practice seems to have evolved many years ago. It either evidences  a concern on the part of the trade as to how commission bids on the books are executed by the auction house itself, or there are other advantages for the trader in proceeding in this way. However, my objection to this practice in the 21st C is that all buyers have to pay a buyer’s premium and I do not see why certain buyers should be treated differently. More importantly, it seems ripe for abuse as the porter, as an employee of the auction house, is under a potential conflict or, at least, it’s only a small distance to helping the trader to other helpful information that he/she should not have. In an age where other professions have to be careful as to what gifts they receive from their particular business relationships, the auction world has apparently escaped such scrutiny. (See further pg.19 The Times 13th May, 2017 where it is posited as a reason why one investment company will no longer be sponsoring The Chelsea Flower Show as regulations make it improper to give out free invitations to clients.)

The same principles make it exceptionally unwise for an auctioneer (or any of their staff) to bid on items for his or her own purchase, something that in other walks of life might be described as “insider dealing.” If it is lawful (as I heard the BBC claim, rather boldly, on an episode of Celebrity Antiques Road Trip) an auctioneer would be wise to ensure that a term to such effect is included in its terms and conditions; any such bid is disclosed and the member of staff bidding has no involvement in the sale of the item itself.

Rings

Buyers (usually from the trade) can form a ring where they agree not to bid against other and then carve up the items amongst themselves at deflated prices. Such rings are illegal but do happen to varying degrees. For those not committing this criminal activity, it can lead to the puzzled feeling that you don’t get a great deal when selling at auction but you somehow seem to be paying a lot when buying!

A true reflection of market value?

Buying at auction in preference, for example, to buying in an antiques’ shop might be justified on the basis that the shop will have overheads to cover and a profit to make, and will be selling at higher than an auction price. It is, however, simplistic to find too much comfort in an auction providing a fair reflection of market value for the item that you buy. It is true that, in an instant, the auction has buyers from far afield, deciding upon an object at a given time but there are various factors that can distort the picture.

Even where there is no reserve, the point at which auctioneers start off the bidding can be a cause for concern. I have been to one auction (heralded as without reserve) only for the auctioneer to start off bidding pretending he had a bid when he didn’t and therefore impose his own reserve. (A member of the auction team in effect admitted this to me.) On another occasion, after quizzing the auctioneer as to the hammer price that I paid, he admitted that the reserve was increased before the auction and above the auction estimate that had been provided. He didn’t see any harm in the estimate giving a wholly false impression. On other occasions, an auction house (or indeed you) can fail to see some important defect in the item being purchased; a misapprehension that might be shared by all other buyers so that the price paid is inflated but without any easy or practical means of redress.

One might hope that auctioneering was merely a practical and transparent form of selling an item but there is indeed an “art to auctioneering” -as one auctioneer proudly told me. Surprisingly, he trumpeted this only after I queried why my commission had been levied against the wrong lot, and then the right lot was invoiced to me but at reserve (no discretion applied) and after the sale, for it had actually been passed in the sale as unsold. It took a while to get him to understand that this “art” might in fact be incompetence and a sale after auction also required my agreement.) Aside from tone and pace (important to maintain interest) there are auctionering aspects that are slightly suspect. These include starting the bidding process at a sum that the auctioneer has no intention to sell at (as being below the reserve) & perhaps pretending to take a bid from a non-existent person at the back of the room (justified as  the bid of the vendor under a reserve.)

While such practices are technically lawful under the auction house’s standard terms & conditions, this is really no better than a deception. At some point, particularly at the lower price, a (real) buyer can be persuaded to bid and is then sucked into the process. Once two buyers have their teeth into bidding for an item, sometimes prices can be achieved that exceed those that one expect to pay in the calm atmosphere of a shop.

When bidding at auction, it’s important to stick to a limit. Of course, there can be slight variations on the day: the item may appear better than the initial viewing or there may be a gut feeling from the bidding such that one further bid would secure. However, tenacity and perseverance – admirable qualities generally -are a buyer’s enemy at an auction &, unfortunately, only play well for vendors and the auction house. Despite “ebay” style terminology beginning to be taken up by some auction houses, please note that you don’t really “win” an item.  Unfortunately, there is an expectation that you will be paying for it, just as you would in a shop! So be patient, and do your homework before the sale. At least 9 times out of 10, a similar quality item will eventually come up. Remember also, that sales can be a bit boring waiting for the lot that you are interested in. Resist the temptation to stick your hand up, or clicking your mouse, when something (that you probably haven’t looked at properly) is apparently going remarkably cheaply. The chances are that there’s something wrong with it, or it’s just not very good!

Summary

Clearly some good bargains can be secured at auction but the truth is that you need to have your eyes opened to some of the less savoury processes and understand where and how it can go wrong. Over the years, regrettably, I have probably bought more “duds” than bargains at auction and the collapse in value of many traditional antiques has emphasized that sentiment. (In that latter respect, what happened to the value in apparently rare Royal Doulton series items or dining tables & why the continuing demise of the bureau?) It is clear that there is greater “come back” for purchases from a shop business than an auction house which can be an important factor to consider. Unfortunately, in an age of cut backs and the disappearance of organizations such as the OFT, it remains to be seen if there will be more regulation of auctions in the near future so as to better protect the consumer. In my view, the law in this area is complex, unclear and inadequate. With changes in consumer habits, and online bidding, better regulation of auctions is undoubtedly required.

Timothy Hanson is a Jersey advocate & English barrister and, disappointingly to his wife –“where on earth are you going to put that?”-  a keen collector of early furniture.

 

 

Message in an Old Pewter Tankard – Touching the Past

In a box of items that I bought at an auction in Oxfordshire was an old neglected pewter tankard. It was inscribed “Queen’s College Boat Club Front Quad: V Back 1861.” It then had the names of the winning crew and their positions: H.J. Gallon Bow; R.Wood 2; G.Godfrey 3; T.Harrison 4;  A.L.Foulkes 5; R.Oliver 6; J.R.Magrath 7; H.W.Barber Stroke;  E.S. Grindle Cox.

Now I hate to get rid of most things, let alone those that have sentimental value or tell a story, and was intrigued by this little grey piece of history. A little research soon brought this neglected item to life & enabled me to touch some of the lives that were marked on it. Intriguingly, I soon found connections with the Channel Islands.

Augustine Lempriere Foulkes (1844-1922) is recorded as a Bible Clerk at Queen’s College (i.e. he received a small stipend for reading the Bible in Chapel) and became the vicar of Steventon. As the name Lempriere implies, he had Jersey origins.

John Richard Magrath was born on 29 January 1839 at St Peter Port, Guernsey, & was the son of a naval surgeon. We know a lot about him & his story is captured in a wonderful article by Michael Riordan FSA, Archivist, St. John’s and The Queen’s Colleges, Oxford:

A year ago, in the College Newsletter, we published four photographs of Provost Magrath taken between 1912 and 1925. These seem to have caught the imagination of many Old Members, so some might be interested to know more of Magrath, a man of mythical status at Queen’s. He has earned this reputation not only through his large-bearded, imposing portrait in Hall and his scholarly, though rather turgid two volume history of the College, but because he served as Provost for fifty-two years. This length of service was twenty-one years longer than his nearest rival (Septimus Collinson, Provost 1796-1827) and only Martin Routh (who began his Oxford career as an undergraduate at Queen’s and ended it as President of Magdalan, 1791-1854) served longer as a head of house.

            John Richard Magrath was born 29 January 1839 at St Peter Port, Guernsey, the son of a naval surgeon. He was educated at Elizabeth College, Guernsey, before winning a classical scholarship to Oriel. He took a first in Lit Hum and a fourth in Mathematics in 1860, winning the Stanhope essay prize and a fellowship at Queen’s in the same year, being one of the first to be elected under the open competition introduced under the 1858 ordinances. Only then did he become President of the Oxford Union. He had begun reading theology as soon as he entered Queen’s and was ordained deacon in 1863 and priest the following year. In 1864 he became tutor (teaching Greats) and Dean. Over the course of the next decade he also took his turn as chaplain and bursar. To all intents and purposes, the Provost, William Jackson, left the administration of the college to Magrath. It was therefore no surprise that in 1877, while he was serving as Senior Proctor, that Magrath officially became Pro-Provost, and a year later he succeeded Jackson as Provost. Ten years later he married his daughter, Georgina.

            While Provost, Magrath served the University on virtually all its major boards: University Chest, Common University Fund, University Press (where he oversaw the establishment of the New York office), Hebdomadal Council, Sheldonian Theatre, University Museum. As well as being Vice-Chancellor, he was also the first don to sit on the city council.

But what was he like? By all accounts he was a good Greats tutor, though one who feared (quite rightly) that Classics was losing its pre-eminence in the University. In this he was conservative (though he was radical in supporting the right of women to take degrees), objecting to the abolition of an understanding of Greek as a stipulation for admission to the University. He was not a great author. Aside from his history of the college (which as his obituary in the Record noted was his magnus opus) he compiled just three volumes for the Oxford Historical Society of The Flemings in Oxford, an edition of the letters of Daniel Fleming and his family while at Queen’s which shed much light on the college and the university in the late seventeenth century. Magrath was not of a generation that published much and as his Record obituary stated he was of an age that considered the life of a head of house to be one of ‘dignity, leisure, and antiquarian research’.

As Dean, tradition has it that he was something of a disciplinarian. This was perhaps no bad thing given that this was the period of attacks by ‘hearties’ on ‘aesthetes’. On one occasion in 1877 an attempt was made to disrupt the first meeting of a new philosophical society being in the college. The room where it was to be held was noted and the chimney above it marked. During the meeting a number of large bath cans of water were transferred to the roof and the water poured through the chimney. Alas, a mistake had been made and the water was poured into Magrath’s own rooms. As EM Walker, Magrath’s successor as Provost, who was an undergraduate at the time, noted ‘The result may be guessed’. Yet Magrath was not a distant figure, at least in his years as Dean and the early years of his Provostship. He rowed in the College eight, before coaching it, and he served as a sergeant in the University Rifle Corps.

            In 1877, while Magrath was Pro-Provost, the Commissioners for the University discussed the fate of the remaining academic halls, including St Edmund Hall. Should it remain independent or should it, like so many of the others, be incorporated into a college? In the end, at Magrath’s suggestion, a compromise was reached. When the current principal, Edward Moore, resigned, a new system of ‘partial union’ with Queen’s would be established. It would be under the control of Queen’s but they would remain separate institutions, with Teddy Hall effectively the poor students’ annexe for Queen’s. It was not until 1903 that Moore resigned and then Queen’s, under Magrath’s lead, decided against the partial union and voted for a complete take-over of the hall. Moore was horrified and led the defence, persuading Congregation to vote against the scheme. Deadlock was held for the next eight years while Moore and Magrath fought for control of the hall, a particularly unpleasant fight as they were lifelong friends. Eventually, opposition within Queen’s collapsed and in 1911 the Hebdomadal Council granted Teddy Hall its impendence.

It is at this time that the legend of Magrath begins. Defeated and exhausted, he effectively gave up control of the college, though remaining Provost and continuing to live in the Lodgings where, after his wife’s death in 1899, he was looked after by his niece, Miss Eva Lefroy. In his place the college was run by Edward Armstrong as Pro-Provost. Because Magrath had been elected Provost three years before the ordinances of 1881 he did not need to retire at seventy. This did not apply to Armstrong who had to retire without ever being Provost. (Indeed, Magrath outlived Armstrong by two years.) Armstrong’s successor as Pro-Provost was EM Walker who eventually succeeded Magrath as Provost, though the ordinances that allowed Magrath to be Provost for fifty-two years forced Walker to retire after three. It is noteworthy that Walker was still an undergraduate when Magrath was elected Provost.

During his years of semi-retirement Magrath was little in evidence. One undergraduate of 1921-4 never saw him, and others believed in his existence only because his ‘minder’ drew batells for him. Another student of 1922-5 saw him only twice, once on the streets in his carriage and once when ‘without a noticeable blush’ he claimed his place as Provost in the college photograph of 1923. It was the last college photograph he appeared in. In 1928 a sensation was caused when Magrath appeared in the front quad in a wheelchair. None of the undergraduates had ever seen him before and all wanted to take advantage of the opportunity. The following year some undergraduates were even tipped off that Magrath would be walking in the Provost’s Garden and they were allowed to watch him walking a few yards from an upstairs window in the Lodgings. During this period rumours rapidly became myths. For example, the Provost’s electric hot water bottle became distorted into an electric mattress with a dazzling array of buttons which could keep any part of his body warm at a touch!

In 1930, at the age of ninety and having been Provost for fifty-two years, Magrath finally died. Eric Ratcliff, the chaplain at the time told students that ‘one day after lunch the Provost had the wind. He said to himself, ‘I’ve had the wind before and blown it off before and I shall blow it off again.’ But this time the wind blew him off’. The veracity of this story is unclear.

So, almost a century after Magrath began his nineteen years of office without power how does his reputation stand? It is probably true to say that he steered the college well as the Victorian age gave way to the twentieth century, a time of enormous change in the University and the colleges. Other colleges had a more traumatic time than Queen’s. In his prime in the last decades of the nineteenth century, Magrath was a man of immense energy who transformed the college. We should remember that he was an important Dean as well as Provost. However, in the twentieth century Magrath was very much a man from a different age, and this led to his great mistake over St Edmund Hall, where he failed to realize that feelings in the University had changed in the quarter century between 1877 and 1903. However, his real mistake was probably in living too long. Over twenty years he created the legend of the absent Provost which perhaps helped to create the atmosphere of inefficiency and sluggishness in inter-war Queen’s that undid much of his earlier energetic reforms.

In conclusion, however, Magrath probably stands in reality, and certainly in mythology, amongst the greatest of the fifty provosts of Queen’s.

Michael Riordan. “

 

Amazing that a grey neglected chance find can be a porthole to a world long gone. I suppose I just need to be careful that I don’t get too carried away if I find a ring with the inscription “Ash nazg thrakatulûk agh burzum-ishi krimpatul.” Unfortunately, I don’t have the temperament of a hobbit, although my feet might be mistaken as belonging to one!

London Terror Attack – Security Failure?

As the dreadful details become clearer, it is uncomfortable hearing how officials predicted the attack; how it was a matter of “when” and not “if.” Only days before, security services are also shown practising for such an event. Parliament, we can all agree, was such an obvious “magnetic” target.

But logically, the next question comes into your head, if it was so predictable, why were armed officers not posted on the actual gates to Parliament (rather than away from the gates as appears to have been the case)? Were officers provided with protective equipment and required to wear stab vests? The attacker was only stopped after the entrance by a Minister’s armed bodyguard who happened to be there: that merely appears to be good fortune.

The reason for raising the issue is that we all take for granted that appropriate security provision is in place when that may not actually be the case. As you are travelling, sometimes you explore in your mind “what would happen, if….” Flying from one UK airport recently, I raised certain security concerns as to why I felt it was vulnerable, only to be told that it met CAA requirements. But I genuinely didn’t think these were enough, and if it occurs to me, presumably it’s going to occur to someone that does have harmful intentions.

If, despite all the warnings & predictions, Parliament is vulnerable to a single individual with knives, perhaps an urgent security review is needed of all our obvious sites? The argument is raised that we need to make sure that Parliament remains accessible to the public, but it still can be even with improved security.

A duty of care is also owed to those in the front line (such as officers at the Parliamentary gates) who are the first to confront such attacks; attacks that we are repeatedly told, have long been predicted. It would be interesting to learn what the drill was meant to be for these poor unarmed officers when confronting the “inevitable” terror attack on such a prime target.

Postscipt

If The Sunday Times is correct (26th March, 2017) that 2 months ago security on the Parliamentary gates was downgraded with static armed guards on the gates being removed, then the officials, advisers & agencies involved in that decision, need to be held to account; not as a matter of hindsight, but because it seems that they have played “Russian Roulette” with the lives of the unarmed officers left on the Parliamentary gates.

 

The Supreme Court’s Ruling on Prerogative Power: how the result might have been different….

Lord Neuberger & his Supremes: 8 v 3

As many expected, the Supreme Court has ruled that the Crown’s prerogative power cannot be used to trigger article 50 & without the sanction of Parliament. The essential reason is that to do so would change domestic law and this is a matter for Parliament.

What is of particular interest is that the appeal was dismissed by a majority of 8 to 3: Lords Carnwath, Hughes and Reed voting in favour of the Government. So if the Supreme Court had sat, as it normally does as a five member Court & also with these three judges, the result would have been the opposite and a win for the Government!

This shows at least four things: (i) how scary the legal process can be, depending upon who sits;  (ii) how right the Supreme Court had been to sit with its full number; (iii) that declarations that the issue is one of law – and therefore apparently only capable of one “correct” result- don’t convey the true picture. As Lord Hughes says at para.281 of the judgment, “clearly either reading [of the legislation] is possible”; and lastly, (iv) either way the appeal went, the public gained in having these important issues clarified, but also went on to lose many millions in the process as they cop the vast legal costs.

Whether you wanted Brexit or not, it is a shame that the Government never thought through the implications at the outset.

The Tempest – RSC – Technological Triumph or Gilding the Lily?

Please don’t think that we have branched out into theatrical or film reviews as a matter of course, but it’s just that there have been a few things that have prompted the odd thought… There will be time enough to talk about the Supreme Court’s decision on prerogative power which will be delivered later this week!

We were lucky to visit the final week of the RSC’s production of The Tempest in January before it moves to London. Reviews in many newspapers have been flattering of a number of aspects including Simon Russell Beale as Prospero. It may just have been the performance we saw, but I  have to confess that I did not feel the gravitas described by some commentators and felt that Beale came across as just a bit camp. The holding of Prospero’s  hand to the head in extreme emotion as Ariel asks “Do you love me, master?” for example, came across as a bit wooden to me and there seemed little that was “breathtaking” overall in the play as others have reported. Miranda (played by Jenny Rainsford) on a few occasions had an irritating warble in her voice, a little like the sound of a sheep.

The new technology employed on this production, further, has been the subject of a great deal of positive comment. Computer-generated images are projected onto gauze on stage, and aided by motion sensors in Ariel’s suit, have an image of him projected about the stage as well as other images, such as of a forest, drowning sailors, or attacking dogs.

The latter two aspects (that were fairly fleeting) did work but the dominance of this technology throughout the play felt at odds with a theatrical production.  The theatre is a wonderful medium that requires “the suspension of disbelief,” as we concentrate on the emotion, the actors, the language and the imagery that is conjured up: the important stuff!  So why would we need to see a projected image of a forest for example? Why do we need to see Ariel in the background moving about but a larger projected computer image also appearing through the wizardry of technology? The underfloor lighting of the beach also gave what I felt to be a brash, harsh, glossy appearance that again I felt was at odds with the outdoor marvels described in this play from 1611. The only slight doubt that I have is whether or not the seat position in the theatre affects the experience of the technology at all, as we were in the upper circle on this occasion.

There was a fair amount of pinching in disbelief by me, however – and rather than of Caliban- as I concluded I had far more enjoyed the performance of The Tempest by  the American Drama Group Europe (directed by Paul Stebbings) in Jersey last July.  It was on a tiny budget with a handful of actors before a small audience at the 13th Century Mont Orgueil Castle that stands majestic above Gorey harbour. There was no impressive technology: simply a small stage in the open air; a passing bit of drizzle before the play started; the sound of the sea with the odd squawk of seagulls and darkening clouds underlit by the fading sun. Nonetheless, we were moved by the emotional connection with the action on stage and understood well Shakespeare’s notion of being on some magical island. The rather eccentric producer, Grantly Marshall, was justifiably in awe of the RSC when I spoke to him in the interval of his production, but I hope that he and his troop may pick up this compliment, that I preferred his honest production that was well acted and wonderfully set at Gorey Castle.

If you want film wizardry, I hope it will be confined to wonders such as Harry Potter or The Lord of the Rings and that the RSC will stick to what they’re good at: wonderful theatre.

La la Land Review- Great film with many layers

We just had a family visit to watch La La Land, which I highly recommend, not just for the delightful nostalgia, romantic comedy, cinematography, singing and dancing, but also for the various depths to its surprising ending.  If you haven’t seen it, don’t let me ruin it by reading on until you’ve been!

Having watched Mia (Emma Stone) and Sebastian (Ryan Gosling) get it together, their relationship comes under pressure as they strive to attain their individual dreams: Mia as a successful actress and Seb as a jazz musician & his own club. She can’t rehearse her play so as to come on tour with him, while he chooses to attend a photoshoot rather than see the opening of her play. To pursue their careers requires commitment & sacrifice, or perhaps a degree of youthful, excusable selfishness. When she gets her big break for a film in Paris – which depended upon Seb’s support in talking her round to go to the audition- they realise that their future together is uncertain. They acknowledge that they will be apart but tell each other that they will always love each other and we believe that these two romantic, tap dancing souls are ultimately destined to be singing & dancing long into their old age together.

“Five Years Later” then pops up on the screen-  and despite the distraction from the lad in front popping off for a loo break and a few irritating rustles of popcorn- I felt rather crushed to find that the path of true love had taken a different turn.

The screen shows the now accomplished actress Mia coming home to her husband, a really nice guy, who has been at home looking after their toddler until Mia returns from the studio. …but it’s not Seb! The husband is clearly a sympathetic, mature, loving chap –so we can’t really dislike him- and Mia has become a huge success, with a family too, so we can’t really fault her choices either.  We then catch up on Seb who has done reasonably well for himself, although not the dynamite success of Mia, but we see him walking past a poster of Mia without even a glance. This wasn’t the ending we were hoping for!

On a detour by a Jazz club, Mia’s curiosity prompts her and her husband to go in. “Its really cool” the husband remarks only for us to see it’s called “Seb’s” – the name that Mia had suggested all those years before. Inside we see that Seb is running a successful “purist” jazz club – his dream that Mia said he should stick at. He sees Mia and starts to play “their” rather melancholic tune on the piano as she, in turn, appears overwhelmed by this chance encounter, taken back to their heady days. The music becomes a conversation by Seb to Mia of how their relationship might have developed; the romantic imagery itself drawn from the musicals and interspersed by clips of home video of domestic life, but now seemingly with a more obvious rose coloured tint that perhaps makes us question whether it would really have run so smoothly. Although Seb is now able to play his tune as a matter of choice and, further, in a club of his own,  his melancholic piano playing stops with the feeling that Seb has not really found happiness and may even regret some of his choices.

Without any explanation, Mia chooses to leave the club with her husband, but for a moment she pauses at the door and we wonder how ultimately she might resolve the emotional turmoil. She turns and looks at Seb, he smiles as does she, and then she leaves.

Thank goodness at least for that exchange of smiles which suggested some mutual seal of approval to the paths that they had each taken, but still, we were all left rather choked up, reminiscent of a visit to  Les Misérables,  which I appreciate is to pay La La Land a compliment indeed.

As some commentators have observed, part of the power of the film is its Robert Frost tale of choices that we all make in life, and the different outcomes that might otherwise have resulted, as we reflect back:

“I shall be telling this with a sigh

Somewhere ages and ages hence:

Two roads diverged in a wood, and I –

I took the one less traveled by,

And that has made all the difference.

(The Road not Taken, 1916, Robert Frost.)

Having been taken through in detail the development of Mia and Seb’s relationship, the 5 year period where everything changes is, instead, left largely blank. This stark contrast forces the audience to question the choices that Mia and Seb have made, and  this is ultimately reinforced by seeing what might have been.

But the story also has a resonance for all those people who fall in love in their youth, perhaps at a time when they are struggling with their careers, and “the mess we make” – as Mia sings- of such relationships. Timing can be everything. It takes a certain amount of maturity to understand that couples have to compromise. Sometimes we have to put others before ourselves for a relationship to succeed. Seb’s closing piano dialogue of what might have been, can be viewed as an acknowledgement to Mia of the mistakes he made in their relationship. So for example, as we then see, he should have kissed her when they met in the restaurant rather than pushing past; he should have been her number one fan at the opening of her play and he should have gone to Paris with her rather than concentrate on his own career dreams….perhaps things might then have turned out differently for them. I imagine that there might be a few watching the film too who would have liked the ability to go back & say sorry to someone for their youthful past failings.

The film is also poignant in demonstrating the unique characteristics of each loving relationship, and that as we pass through life, it’s ok to value what’s gone before – even if it did not work out – while still choosing the present. As soon as we saw Mia’s family set up after the 5 year gap, we would, in truth, have disliked her had she simply ran off with Seb. In fact, we are left feeling that the husband is the better and wisest choice. It’s just a bit sad that it seemed such a final farewell as she left the club!

Ultimately, both Mia and Seb played critical parts in the other reaching their career dreams and, as their parting smiles confirm, they share something unique. Yet, their choices and circumstances are such that they will travel on separate paths. While not doubting Mia’s choice, there’s still something a bit sad in that outcome, perhaps captured in Mia’s earlier song that honours “the hearts that ache….”

I don’t think that some of the film reviews have captured the intricacies of this film but it has certainly been a hit at the Golden Globes. Best Film at the Oscars? Undoubtedly ….and surely most of the other awards too!

 

Advocate Hanson Listed in Citywealth Leaders List

Timothy continues his ranking in the prestigious Citywealth Leaders List 2016/2017 in the category of contentious trusts. The List is a directory of leading professionals in the private wealth management and private client industry. The list is the result of an ongoing year-long programme of peer recommendation and verification. Timothy is proud of the fact that his practice continues to be recognised as top tier and is more than a match for the larger firms. Independent researchers noted:

Tim was instructed to act on a complex trust matter which saw many twists and turns. He was proactive, with an immediate grasp of the essential issues, which could easily have been overlooked. I have no doubt as to his ability and pragmatism.”

UK Financial Ombudsman Partially Upholds Complaint Against Aviva Pensions

Readers of this website may recall a previous story relating to certain Jersey Pensions run by Aviva and its failure to administer its charges correctly. The UK Financial Ombudsman has recently ruled that Aviva is entitled to take charges going back several years & that it had overlooked to take at the time, & despite the fact that the annual pension statements supplied to customers would therefore have been incorrect. The Financial Ombudsman does, however, find fault in the way that Aviva handled the issue with customers and specifically the way in which it communicated its remedial measures. You can read the adjudication here: http://www.ombudsman-decisions.org.uk/viewPDF.aspx?FileID=131601

Faced with justified consumer complaints about the issue, it is a shame that Aviva was not a little more pragmatic at the outset and did not offer any compromise to affected clients. It has now been found wanting and has done little to inspire client loyalty.

 

Triumph of Open Justice – Live Link to The Supreme Court

Between 5th-8th December, 2016 there has been live coverage of the Supreme Court sitting with its full panel of 11 judges hearing the appeal in respect of whether the UK can exit the EU under prerogative power rather than by an Act of Parliament. In fact, cases routinely can be viewed live by the following link: https://www.supremecourt.uk/live/court-01.html

The ability of the general public to view these proceedings in particular, is a triumph of open Justice and I hope will lessen the inaccurate media coverage that has surrounded this controversial topic.

On my analysis of the various arguments and the mood of the hearing, I am predicting that the Government’s appeal will be defeated! Given the legal & administrative costs involved & that will ultimately come from public funds- running to £millions– it is a shame that such monies could not have been better spent on the NHS say.

What I found comforting is that no matter how high the Court or senior the lawyer, Court bundles are always a nightmare and the slightest pagination variation can cause all sorts of problems. In addition, feeling interrogated by a panel of intelligent judges is an experience that befalls all lawyers inhabiting the higher levels of Court. It was nice to see judges like Lord Sumption or Lord Hodge (who have sat in Jersey in our Court of Appeal) displaying their intellect.

In the face of some poor media coverage, well done to The Supreme Court and those administrative staff that keep the live link working.

“Enemies of the People” v Independence of the Judiciary

The High Court’s decision on the triggering method for leaving the EU has caused a media storm. In fact, at the English bar there has been a debate going on for months as to what has to happen legally because there are respectable arguments either way. Certain newspapers have condemned the three man decision of the High Court with headlines such as “Enemies of the People” with biographical details given of the judges concerned. Several politicians clamour that attacking the independence of the judiciary is wrong and asking the government to stand up for the judges. For the public, listening to interviews on Newsnight, with commentators talking over each other, or some other poorly presented newscasts, it can be difficult to follow the competing arguments. Quite often there is a great deal of “dumbing down” with shades of grey presented as black and white truths.

The judges concerned are unlikely to be pleased with the coverage but they are robust individuals who will not be overly worried by a few headlines. Just as the newspapers will be pleased at having got attention, one cannot help thinking that politicians clamouring for support of the judges are enjoying their media attention too.

The reality is that the judiciary are, on the most part, from a selective background and do not reflect the great diversity of British society. Professor Griffiths wrote about this in his 1970s book called “The Politics of the Judiciary.” Even judges are aware of the potential problem. In an address delivered to the University of Cambridge Law Society on 18th November, 1920 Lord Justice Scrutton accepted: “The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgements as you would wish.

It was this concern about ensuring the diversity of the judiciary that led to criticism that it was “male, pale, and stale.” The rise of women and ethnic minorities in the judiciary has, for example, come quite late in the day. Even in 2004, Lord Falconer said that “a more diverse judiciary is essential if the public’s confidence in its judges is to be maintained and strengthened.”

In reading the judgement of the High Court, it is very difficult to see where the judges’ private views, personalities or background will have had any effect on the result in this case. Certain of the headlines are really pandering to bigotry and prejudice therefore. But it is right to say that in very exceptional cases that the background of the judge(s) hearing a case can play a part in a finely balanced decision. I recall being a law student and taught by a very good lecturer in this area called Dr Hungerford. She had a big pamphlet of materials entitled “Legal Method & Materials” (that I still have) and one of the topics that we discussed and learnt about was analysing historic cases where the selective background of the judiciary very likely did result in a particular judgement. It is fair to say that the majority of such cases we looked at were in the 19th and early 20th centuries. However, it is naive to believe that the judiciary are never affected by their own upbringing, education and beliefs. It’s just that I can’t see how it played out in this case.

So in the current media debate, it would be helpful to have a little more depth and insight in the arguments deployed and the coverage we are receiving. At the end of the day, the poor public is subject to manipulation from a variety of sources that have their own agenda.