Law and Justice

Archive for May, 2010

Take a word of advice from an NYC leading plaintiff’s medical malpractice law firm specializing in physician and hospital mistakes and errors– The Najdovski Law Firm PLLC located at 55 Broad St, one block off Wall Street in the Financial District of Lower Manhattan. Fortunately there are now abundant resources on the Internet that allow patients to research potential hospital before they are admitted to a particular hospital. The Najdovski Law Firm PLLC urges patients to make use of these resources before choosing a hospital for their surgery or treatment plan. Mr. Najdovski warns that just as there are doctors who have a more than average number of lawsuits against them, likewise there are hospitals which seem to attract more lawsuits than others.

Using sites such as the New York State’s Hospital Profile at http://hospitals.nyhealth.gov can help patients make good decisions about which hospital to use for their medical and surgical treatment. Hospital quality measures indicate how well a hospital provides care for its patients, especially in the specific areas of heart conditions, pneumonia care, surgical infection prevention, performance of coronary artery bypass grafts, angioplasties and pediatric heart surgeries, such as correction of Tetralogy of Fallot.

Beware: there is a growing tendency for hospitals which have realized that they have made a mistake or have negligently treated a patient to contact the patient to “apologize” for their carelessness, says attorney Najdovski, the Founding Member of The Najdovski Law Firm PLLC. Of course on a non-life threatening or minimal injury case, this may satisfy many people. But what is startling is that the internal department at hospitals commonly known as “Risk Management” offices (as in, managing how to pay out as little money as possible to aggrieved patients) actually contact patients who have suffered devastating problems with their health. Many times this “apology” is enough to stop the patient from bringing a lawsuit against the hospital. Frankly, although it may seem endearing, heart-warming and nice of them to admit a mistake, just remember that when your cappuccino in their office is long cold, you then have to go home and live with it.

According to an article on injuryboard.com, hospitals are working hard to minimize lawsuits by making many more apologies to patients than they used to. “Hospital officials are hoping saying ‘we’re sorry’ will cut down on lawsuits and save money,” the article states. The new trend is being investigated at several hospitals across the country, but it is not clear whether it will make a difference in the number of patients who choose to sue.

Our system of law has developed to compensate individuals who have experienced medical malpractice. An apology from a hospital is nice, but should not be confused with rightful compensation for some patients who have truly suffered from a hospital’s errors. Attorney Najdovski states that the pain of being involved in a medical malpractice case could be avoided through researching the hospital first.

Attorney Najdovski urges that patients do not use the New York State’s Hospital Profile site as their only means of research. After carrying out basic web-research, patients should also contact people at the hospital and other patients of the hospital before making a decision. You are always free to contact Mr. Najdovski directly to obtain his opinion regarding your proposed treatment and his experience with whatever particular doctor or hospital you intend to use.

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You know you have seen many Hollywood glorifications of spies when you start thinking that all spies, both reel and real, have only noble intentions in committing industrial espionage. Add in impressive mini spy cameras and other gadgets, and everybody looks like James Bond. This is far from the truth.

As a businessman, you will realize that industrial espionage does not only affect your business, not by a long shot. Depending on the extent of spying performed, the methods employed, and the uses to which the stolen information is applied, industrial espionage causes loss of revenue and taxes, loss of direct and indirect jobs, negative impact on the trade balance, and an undermined confidence in personal and corporate security. In short, you will lose money and people.

Spread of Industrial Espionage

Espionage has been around for a long time. Almost all societies have a history of deception and subterfuge, the enduring practice of which attest to the invaluable role espionage has played in building and destroying organizations.

With the advent of modern technology, the methods employed have also improved. The invention of the mini spy cameras has pushed industrial espionage to new heights (or lows, depending on how you look at it), such that it is virtually impossible to prevent intellectual property theft. Indeed, the detection of Internet spies is easier compared to spies who use mini spy cameras to record confidential information.

Methods Employed

To protect yourself against the debilitating effects of industrial espionage, you need to know the methods employed. This is to enable you to adopt countermeasures to lessen its effects.

Eavesdropping is the interception and interpretation of text messages and audio conversations. This is usually done through telephone bugs, e-mail, and instant messaging interception, among others. Of course, there is always the old-fashioned way of literally putting your ears to the walls. However, with highly advanced mini spy cameras with audio capabilities, this old method is somewhat redundant.

Surveillance uses electronic and technological means, just like eavesdropping. In business, you will encounter the use of cleverly-hidden mini spy cameras that record your documents, processes, and people. The first two are of special concern since these are used to gain economic advantage over you.

Suspicious Behaviors

When your employees access computer files and report to the office after normal or authorized working hours, especially in restricted areas, you might have spies in your organization. If it is possible, install hidden mini spy cameras in strategic areas not only to minimize employee theft of properties but more importantly, intellectual property theft. When your employees also report suspicious and unverifiable laptop theft, watch for signs of spying.

As to business associates, be very wary of them when they change personnel at the last minute for sub-contracting projects. Also, be cautious about inviting them to manufacturing and administrative areas unless absolutely necessary; this might be a ploy to acquire a lay-out of the premises and record trade manufacturing secrets.

For visitors, watch out for guests who break away from the tour group. Again, this might be a plan to acquire information.

Armed with information about how you can prevent, or at least minimize, industrial espionage can help you in organizational development. Use the methods and gadgets of industrial spies to your benefit, too.

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Fighting a Criminal case can be a complicated affair without a quality Criminal Defence lawyer at hand. A good criminal defence lawyer can provide valuable advice and assistance at every necessary step during the case proceedings.

Therefore, it is important to find a good criminal defence lawyer to defend your case. The moment you land up in a soup, remember to call your lawyer for assistance and adequate legal advice.

Every criminal case should not be treated as the same. There are numerous cases in which the guilty needs a second chance of reconciliation. It is a fact that crime is eating away the roots of humanity but in criminal cases like drug abuse, domestic assault, more than punishment the accused and the victims in some cases require a compassionate lawyer.

A compassionate Criminal Law Vancouver is required not only to defend the case but it also plays a vital role in providing council service to the guilty party. A good criminal lawyer will try to understand the causes and reasons behind a possible drug abuse or the reasons that led to domestic assault or theft. In most cases, the accused is innocent or has been dragged to crime due to peer pressure or stress.

John Buchanan is a trusted and highly experienced Criminal Defence lawyer based in Vancouver BC offering quality legal services for over 25 years. It serves the entire Vancouver and adjoining regions in British Columbia to offer consultancy and legal services for numerous criminal defence cases like domestic assault, drug abuse, impaired driving, theft, fraud etc.

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EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS  

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

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Law School Scholarships Women are available for qualifying students.  Here are a few of these Law School Scholarships Women you can look at.  Find more scholarships that fit your needs by also doing your own research.

*** Click Here to Register Free for the $10,000 Scholarship ***

There is a free $10,000 scholarship drawing that occurs every month at Scholarship Zone.  To apply, you just need to be a resident of the United States and at least 18 years old.  To enter the giveaway, you simply have to fill out the quick and easy registration form on their site.  The drawing deadline will prevent people from getting a chance to win so remember to register soon.

You need to check out the writing scholarship from Coe College.  You can get up to $1,000 pear year for four years of education.  If you want  to apply for this scholarship opportunity you need to have a minimum 2.5 GPA and you need to demonstrate financial need.

You can get a $20K check from the National Security Education program.  The scholarships are worth $1,500 each and can be used to fund any study under any degree.  You need to submit a portfolio of your writing and whoever wins the scholarship they get anywhere from $1,000 to $5,000.

*** Click Here to Register Free for the Law School Scholarships Women $10,000 Scholarship ***

You can win more scholarships if you apply for as many scholarships as you qualify for.  You control the success you will have in college.

During your application process, always keep in mind to make your strengths easily visible through your essay and such.  Also, another good idea when applying for scholarships is to start doing it early on during the semester so as to have more time to complete more applications.

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Nowadays, silk scarves are available in various colors and sizes you can choose one that best suits your outfit. Apart from other beautiful varieties of silk scarves, white silk aviator scarves gain more popularity because of its same old qualities of comfort and style. Whenever, you wear it you will become a symbol of elegance and luxury.

The white silk scarf occupies a special place in history. Although it is now renowned as an unusual yet elegant means of accessorizing an outfit, it actually began as a functional article of clothing. Years before, aviators wore scarves because the planes were open and exposed them to cold air. It was not practical for the pilots to wear coats with high collars because it tends to restrict movement. The solution was to wear scarves. Silk was the best material to use because, unlike other fabrics such as wool and cotton, it does not chafe the skin.

Today, people have taken the liberty of wearing this great garment even though they aren’t pilots. Even if they do, the cockpits of modern aircrafts are hardly ever designed to be open. The reason why they remain popular is that they have crossed over from function to fashion. Although white is the most common color of the more this article of clothing, it does come in a variety of styles.

Choosing the correct white silk scarf depends on the occasion it is going to be worn in and the taste of the one wearing it. A good length to purchase is one 60 inches or so in length, with or without fringe. White is always a good color to pick because has the classic appearance of old-world glamour. But, black is a great color also for different events.

1. Six feet is a good length to buy because there should be enough fabric to wrap around the neck securely. In addition to this, the non-fringed variety looks more polished. However, those with embellishments can still be used for less formal occasions. In choosing a white silk scarf, pick one that has two layers to improve the strength of the fabric as well as give more protection against the cold.

2. Wearing this fashion statement can be as easy or complex, depending on what the user wants. For a more casual, easygoing look, simply loop it around the neck and let the ends fall to the sides. For those who do not want the end of the scarf to move so freely, they can be weighed down through the use of knotting techniques.

3. One of the classic knots that can be used is the square knot. To do this, take the scarf and drape it around the neck in the desired tautness. After this, place one end of the scarf over the other and bring to the front to create a knot. The loose ends can then be tucked inside the shirt or jacket.

4. Another way of tying your white silk scarf is by placing it around the neck in such a way that one end is much longer than the other. Fold over the long end over the other to bring it towards the middle portion. Loop it around to the knot that was created and string it back to the front. Tighten the knot until it is comfortable and fix the material so that it will fan out.

The white silk scarf is a great way to add some elegance in days when it is cold enough to wear a scarf. It definitely provides a good alternative to the usual looks and designs that almost all modern accessories offer.

With the benefit of over ten years of independent research, Who’s Who Legal used the thousands of nominations it has received from clients and private practice professionals to identify the leading firms in 50 countries and five US states. The winners were formally announced in The International Who’s Who of Business Lawyers 2008, a compendium edition of all the individual Who’s Who Legal publications, which was released in May, covering 29 practice areas and nearly 100 countries.

Editor in chief Callum Campbell said, “In a highly competitive field, receiving the Who’s Who Legal Shipping & Maritime Law Firm of the Year Award is an outstanding achievement. This is the first time we have recognised a firm in this field, and the consistently positive feedback Ince & Co received reflects its exceptional individual and collective talent. We have no hesitation in declaring Ince & Co the leading firm for Shipping & Maritime expertise.”

Partners from the firm received sufficient nominations from their clients and peers to be listed nine times across seven countries in the Shipping & Maritime chapter of the publication. The firm had more practitioners in this section than any other firm, and James Wilson features among the most highly regarded individuals in the research overall.

Who’s Who Legal lists only the leading practitioners in each field, based exclusively on the findings of an independent six-month research process. The awards are based on a number of factors, including the feedback received in the ongoing research process, past performance in the research and the overall aggregate number of weighted votes cast in their favour.

In addition to identifying the overall leading firm in 50 countries and five US states, the awards also recognise the leading firm and individual in each practice area. The compendium edition is distributed free of charge to thousands of corporate counsel and private practice lawyers from around the world. The information is also available on whoswholegal.com and is updated daily.

This year, Who’s Who Legal was named the Strategic Research Partner of the ABA Section of International Law in addition to its position as Official Research Partner of the International Bar Association. In 2006, Who’s Who Legal’s parent company Law Business Research was recognised by The Queen’s Award for Enterprise in the area of international trade. These awards are the most prestigious a British company can receive.

ENDS

Mitigation of damage arises in a number of contexts. Claimants to legal proceedings have a positive duty to avoid suffering loss when a legal wrong has been suffered be them. Mitigation is a powerful set of legal principles that entitle a defendant to argue that they are obliged to pay lesser sums in a claim for damages.

What should or should not have been mitigated by reasonable action in a particular case is a question relying on the facts of the case. Whether the law imposes upon the claimant the obligation to mitigate on those facts in the first place, that is, has the duty arisen, is a question of law.
Background

The measure of compensation that a claimant is entitled to recover is the loss naturally flowing from the legal wrong. This measure of damage is offset by a duty to mitigate – or minimize – losses suffered by them by taking all reasonable steps to mitigate the loss consequent on the breach.

Thus, simply because a defendant breaches a contract or infringed copyright does not mean that a claimant is entitled to recover endless damages or compensation for their conduct. Unsuccessful litigants are not required to compensate a successful claimant where the claimant has sat back and allowed damages to accumulate or to pay sums that are too remote in law to recover.

For instances, a supplier of goods or services fails to deliver, the buyer is not entitled to sit back on a rising market or wait until a contract for onward supply has fallen though, and then claim the loss from the defendant. They must approach the market with reasonable speed and buy equivalent goods or services.
Reasonable Steps to Avoid Loss

A claimant must take reasonable steps to mitigate loss. Claimants are not entitled to recover those damages represented by sums that are avoidable by taking reasonable steps. If the claimant has failed to take reasonable steps to avoid particular losses, the claimant is not entitled in law to recover them, as they are not entitled to profit from their own neglect. This neglect may take of the form of either failing to take action reasonable steps or allowing an act to continue that would have increases loss.

A claimant is not entitled to recover sums or for actions taken that were unreasonably spent or steps that were unreasonably taken. The claimant will only be entitled to recover those expenses that were reasonably incurred.

Where a claimant takes measures to mitigate loss, the defendant is entitled to the benefit of those steps, such that the defendant is required to pay the reduced measures of damages resulting from the steps made in mitigation. In this way, the claimant must hand over the benefit of the steps made in mitigation to the defendant. This applies even if the claimant would have been entitled to recover the losses if the particular steps made in mitigation had not been made.
What is Reasonable?

Although the claimant is not required to nurse the interests of the defendant as if they were his own. A claimant does not need to act with perfect knowledge or an ideal wisdom, however the law will protect against wanton, needless or careless conduct.

The same test applies to the duty to mitigate regardless of whether it is an infringement of intellectual property rights, a contract claim, or the more serious claims such as fraudulent misrepresentation. The parties must act reasonably between themselves having regard for the turn of events between them. The claimant is not required to take unusual steps outside the outside the ordinary course of business; indeed if they do so, they will not be entitled to recover the sums expended.

The following guidance may be useful to determining when the claimant has a duty to mitigate their loss:

1. The time that the claimant came into the knowledge that a breach had taken place may be relevant to determining when it would be reasonable for them to take action to mitigate loss;

2. where damage may be caused in the natural course of events to the claimant’s property, they may be required make their own repairs (or incur expense in doing so) rather than allowing their damage to exacerbate by not acting;

3. Allowing time to pass to acquire alternate goods or services in order to deliver on a contract, a claim that the claimant has failed to mitigate is more likely to be successful;

4. Where there are avenues available to safeguard an interest, such as registering a registered interest in property on a relevant public register and the claimant has not done so, is it likely that a claimant has failed to mitigate;

5. Where sale of property may be made to minimize loss in a buoyant market and is not made, there may have been a failure to mitigate;

6. Where a claimant exercises a right to terminate a contract on the basis of late delivery may be relevant to mitigation in a rising market and they refuse to accept an offer less than what a purchaser in the rising market may be prepared to pay;

7. In some cases, it may be unreasonable for an injured party to consider an offer from the party in breach in mitigation; in commercial contracts (rather than those of personal service) this will ordinary not be the case.

On the other hand, the claimant may not be required to mitigate:

1. When the claimant does not need to undertake undue risk in expending resources to mitigate loss;

2. Commencing action against another defendant, where a cause of action lies against other parties who are liable to them, where a case with reasonable prospects of success cannot be shown;

3. in circumstances that would require the inured party to surrender, dispose of or destroy their own property rights to mitigate the loss of defendant;

4. a claimant will not be required to act against the interests of innocent parties to reduce recoverable loss;

5. the claimant is not required to sacrifice their commercial reputation in order to avoid losses suffered by a breach of contract;

6. to allocate resources, including personnel and finances that they do not have to take steps to mitigate their loss. Note that this would need to be proved with sworn evidence.

Recovering Sums spent in Mitigation

When a claimant does take steps to mitigate their loss, the loss that they suffer as a result of taking those steps is in broad principle recoverable from the defendant. This remains the case if the steps taken incur greater expense or loss than would have been incurred if these actions had not been taken.

Instances of where this has been the case are:

1. Where substitute goods or services are required to replace damaged, destroyed or undelivered goods;

2. Expenditure on advertisements where trade mark infringement has taken place;

3. Incurring expenses to conduct enquiries where unlawful conduct has taken place, in the appropriate circumstances, even though the enquiries may have exacerbated damage, provided that there was no ulterior motive.

Although such actions may increase or aggravate damage suffered, the increased damage is recoverable as well as the incurred expense, provided that the steps are taken to safeguard the claimants interests.

There is a caveat to recover of sums spent in mitigation over and above what the law considers reasonable. If the claimant goes further than what the law requires, the defendant will be entitled to the reduction of damage. The claimant must be aware of the limits of what may be reasonably done in the circumstances to reduce their loss, and then realise they are not required to go further. That limit is where the expense in mitigation is not one arising out of the consequences of the breach, and not in the ordinary course of business.
Conclusion

Although many claimants may have strong claims on liability for infringement of copyright, patents and other intellectual property rights, mitigation is a sword in the hands of the defendant to reduce loss suffered: if the claimant does not discharge it duty to mitigate, they are not entitled to recover that loss, thus reducing the sum to be paid by the defendant.

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