Lawyer Watch

There’s an interesting judgment involving two litigants in person just been published. Sir Alan Ward’s opening paragraphs have garnered a lot of attention:

  1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge…

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Indian Commercial Law and Practice

It  is quiet common to find in American law centred contracts indemnity clauses which do not limit their scope to third party liability cover or statutory liability cover and instead become very broad statements encompassing all sorts of damages, claims, losses and legal expenses arising “directly or indirectly”  from “breach of the contract” or “negligence of performance” .   This trend may be more seen in IT services Agreement.

This raises the question if indemnity should cover  losses for breach of contract? Or should it limit its scope to covering losses or liabilities which in law can be claimed only from one of the parties? In common law, suit for damages (S 73 and 74  of Indian Contract Act, 1872) is the remedy available to the non defaulting party against the defaulting party to the contract. This remedy is generally available in law whether or not there is express provision in the contract…

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Legal Inforation Institute of India

Aside

The Legal Information Institute of India:
http://www.liiofindia.org is an international standard, free- access and non-profit, comprehensive online collection of Indian legal information. The prototype is open for public use.
The project is a partnership of four leading Indian Law Schools are the initial Indian project partners: three National Law Schools (NALSAR University of Law, Hyderabad; National Law
School of India University,
Bangalore; and National Law University, Delhi), and Rajiv Gandhi School of Intellectual Property Law, Indian Institute of
Technology – Kharagpur.

Bharat Chugh on the Laws of India

Summons, Warrants and Proclamation are the measures by which court seeks to ensure appearance of parties/accused/witnesses before itself, ranging from commutative to compulsive.

A Summon is an order to appear before the court usually in criminal matters through a police officer.
If summons are not complied with or in extremely serious matters in the first instance only – court may issue a warrant.

A warrant is an order to a police officer usually – to procure a person before the Court. A warrant may be bailable or non bailable – in the former the police officer executing the warrant is empowered to take security for the person’s appearance before the court without taking him in custody, on the other hand – when a warrant is non bailable the police officer arrests the person and produces him before the court, the court then may remand him to custody or grant bail.

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Bharat Chugh on the Laws of India

i)Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

ii)The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

iii)A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

iv)The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus…

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Bharat Chugh on the Laws of India

The Law of Adverse Possession, it is being consistently recognized as affront to ideas of equity, justice and even common sense. Courts have placed a great burden of proof on a person claiming ownership on the basis of adverse possession owing to the inherent inequity of it. In this judgment the Hon’ble Supreme Court observes the same in it’s lucid best :-

“It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years…

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Failed Evidence

In a post here last week about the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, I asked why the Constitution requires the state to pay for a lawyer for defendants who cannot afford a lawyer.   Here, we move on to another question: how does our society shoulder this burden?

We can answer that question in two ways.

The first answer is really an evaluation: we do not do it very well.  I kept my eyes open for stories about Gideon in the media and on the web in the last couple of weeks, and I found none saying that we were doing a great job.  Instead, the picture was bleak almost everywhere.  The New York Times’ recent stories on Gideon (here and here) were typical, recounting stories of people whose difficulties were made worse by inadequate or non-existent legal defense.   At…

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