The future should sue today’s climate activists for slowing The Great Escape

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Source: Oregon Court Declines To Dismiss Children’s Crusade Climate Lawsuit | Competitive Enterprise Institute.

@GreenpeaceNZ should not support the vexatious claims of climate refugees @NZGreens

Political support is tenuous enough for admitting more political refugees and war refugees to New Zealand without visa overstayers trying it on with claims for asylum on the basis of climate change – that they are a climate refugee.

Currently New Zealand small refugee quota of 750 is under review. Chances of that been increased to 1000 are reasonable. If people are trying to open the floodgates to millions of people as potential refugees of climate change, if Greenpeace’s own alarmist rhetoric about global warming is to be believed, Greenpeace only strengthens the hand of the anti-immigration and xenophobic parties such as New Zealand First and within the National Party caucus.

Not everyone is a worthy cause, particularly those who make vexatious legal claims that were always going to fail in court. The High Court, the Court of Appeal and the Supreme Court all ruled that it is not their place to expand the scope of the international refugee convention to cover those displaced by climate change. As the Court of Appeal ruled

No-one should read this judgment as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgment makes is that climate change and its effect on countries like Kiribati is not appropriately addressed under the Refugee Convention.

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Source: Doing Business in Kiribati – World Bank Group

Kirabati can do a lot more to help itself rather than looking to others to solve its problems. It is ranked 133rd in the World Bank’s Doing Business database. This means it can do a lot to help its own development, which strengthens its resilience against climate change and rising sea levels. In the High Court, Priestley J observed:

The economic environment of Kiribati might certainly not be as attractive to the applicant and his fellow nationals as the economic environment and prospects of Australia and New Zealand. But he would not, if he returns, be subjected to individual persecution…

The appellant raised an argument that the international community itself was tantamount to the “persecutor” for the purposes of the Refugee Convention. This completely reverses the traditional refugee paradigm. Traditionally a refugee is fleeing his own government or a non-state actor from whom the government is unwilling or unable to protect him. Thus the claimant is seeking refuge within the very countries that are allegedly “persecuting” him.

Kiribati’s Human Development Index value for 2012 is 0.629—in the medium human development category—positioning the country at 121 out of 187 countries and territories. The rank is shared with Indonesia and South Africa.  Kiribati is not unusually poor if it is similar in human development index ranking is to Indonesia and South Africa. Since 1980, Kiribati life expectancy at birth has increased from 55 years to 68 years. Average years of schooling is nearly 8 years and expected years of schooling for their children is now 12 years.

France, here the New Zealand labour market comes! The Employment Court’s long march to re-regulate

If the Employment Court had its way, New Zealand case law under the Employment Relations Act regarding redundancies and layoffs would be as strict as those in France. As top employment lawyer Peter Cullen explained in the Dominion Post today:

Former Employment Court chief justice Tom Goddard said employees could not be made redundant unless the company would otherwise go to the wall.

The employer appealed.

The Court of Appeal said something quite different. Its view was that if a business could be run more efficiently without a particular position, then it was entitled to disestablish it.

The Court of Appeal made it plain that it would not critically examine the logic behind the employer disestablishing a role. If the reason behind the redundancy was genuine, that was all that really mattered. Of course a fair process and consultation ought to precede any decision, but the outcome nevertheless was that the position could go.

The Employment Court wanted the position to be the same as at that in France where layoffs are permissible only to avoid bankruptcy:

…firms still cannot lay off workers to improve competitiveness when the business is healthy; they can only make economic dismissals to preserve competitiveness when already in financial straits. In France, it ought to be legal to fix small problems before they become big.

This French standard of regulation of layoffs and redundancies, if it had survived on appeal, would have come as a surprise to many, including the OECD who rates New Zealanders having no regulation of layoffs in its Index of Employment Protection.

Source: OECD employment protection index.

But you can’t keep an activist Employment Court down. It’s next tactic was salami tactics. Chipping away at the right of the employer to run its business and decide how large its labour force is. Peter Cullen again with the Employment Court pretending it can second-guess entrepreneurial judgements and arithmetic:

In the case between Grace Team Accounting and employee Judith Brake, the Employment Court found that the decision to make Brake’s position redundant was based upon mistaken arithmetic. The Court of Appeal held that Brake’s redundancy amounted to an unjustified dismissal.

Next cab off the rank was requiring employers to give preference to redundant employees pretty much no matter what. Peter Cullen again:

In the case of Neil Wang and his employer the Hamilton Multicultural Services Trust, the trust encouraged Wang to apply for another role within the organisation.

However, the Employment Court said the trust should have considered whether they should have simply offered Wang the position without having to go through an application process.

The court found that even though the other role was not the same, it required the same skills and minimal retraining and so the trust should have simply given Wang the role.

It is standard in the redundancies and restructurings I’ve been involved with for non-managerial employees to go through internal reassignment panels. Some didn’t make it and were laid off.

It’s common for the managerial vacancies to be advertised externally so that redundant managers must compete with external applicants so that the workplace can renew itself. Quite a few managers don’t make it through this process because of the external competition.

This clear preference for existing employees is a major reregulation of the labour market. Now, every redundant employee can engage in vexatious litigation and squeeze a few thousand dollars extra out of the employer by threatening to go to the Employment Court for a second opinion on the entrepreneurial judgements of the employer. To save managerial time as well is legal fees, it’s cheaper for most employers to pay the redundant employee off with a small settlement.

Anything that makes it more expensive to fire an employee makes it more expensive to hire an employee. This will reduce job creation in New Zealand now that the French standard applies:

…businesses remain obligated to assist laid-off employees in finding other jobs and in retraining them for their new positions – a distinctly French phenomenon. For businesses with more than 1,000 employees, this limbo period before dismissal can last from four to nine months.

Useful information for coffee drinkers

CoffeeCupWarningFourGreenis

HT: overlawyered.com

Useful advice for people who don’t heed warning signs

HT: overlawyered

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On the economics of nuisance suits

A lawsuit with a low probability of success at trial, brought even though the plaintiff knows that his probability of prevailing would not justify his costs if the judicial process were to be completed instantly.

Eric Rasmusen

There are a range reasons why plaintiffs bring suits with little or no chance of success; some of these reasons include extracting a small cash settlement from a respondent who is too busy to spend time in court, and preparing for court. In the area of intellectual property law, nuisance suits are sometimes called patent trolls. Patent trolls are a real problem with major corporations spending large sums of money to defend these suits.

Courts are increasingly used as a high-cost, last-resort venue of business negotiation for parties who are unable to negotiate more economically.

It is costly to respond to the plaintiff’s nuisance suit and failure to respond will lead to a default judgment against the defendant. The defendant will settle with a plaintiff for any amount less than the cost of responding to the plaintiff’s complaint even if the suit is wholly meritless.

The source of nuisance suits is the ability of the plaintiff cheaply to place the defendant in a position where he would lose unless he engaged in a relatively costly defence.

Nuisance suits actually have quite a simple solution in the case of plaintiffs who really don’t want to go to court even in the American system where each party pays their own legal fees.

That solution is to call their bluff by tying your own hands in terms of offering a settlement out of court. Introduce a legal rule that gives defendants the right to have courts declare that settlement agreements will not be enforced. Defendants can simply waive their right to settle out of court and have any such settlements enforced in courts.

This burning of the bridges by the defendant on any option of settlement puts the vexatious litigant in the position of having to go to court even though they don’t want to incur those expenses.

The vexatious litigant will drop the case because they have nothing to gain, and something to lose by going to court, especially in the English system where the losing party pays part of the other side’s costs. Anticipating that the defendant would elect to prevent court enforcement of any settlement, the plaintiff would not bring his nuisance suit in the first place.

The optional for going the right to settle out of court will not deter all nuisance suits.

  • The suits might be a a grudge suit or official vindication of one’s cause.
  • The plaintiff may value the publicity as is commonly suspected of public prosecutors who bring sensational but legally dubious civil or criminal suits.
  • The plaintiff may value the delay that litigation brings. If the suit includes a preliminary injunction, or if the plaintiff can win with a biased lower court even if he knows he will lose on appeal, he is able to delay something costly to them. The defendants may be able to delay yielding up property or complying with rules. Also, especially in land-use disputes, delay may enable a litigant to lobby to change the relevant law to his advantage.

There are limited versions of this prevention of the enforcement of offers of settlement through payment into court and Calderbank offers of settlement without prejudice save as to costs.

Under each of these litigation cost rules, if an offer of settlement is made without prejudice save as to costs, if the plaintiff does no better in court than he does under a prior settlement offer made without prejudice save as to costs, he is not entitled to recover costs of litigation beyond the point where the settlement offer was made.

The issue with which of the American and English system of liability for costs deters low value litigation is for another blog. As a hint, the English system where the losing party pays a substantial part of the winning party’s costs, makes strong cases stronger and weak cases weaker. Strong cases are more likely to go to trial because they also get the costs back.

A loser-pays rule for legal fees doesn’t work if the nuisance suit is filed with the intention of never ending up in court, but rather to waste the time of defendant, and that time is sufficiently valued by the defendant that it will pay a small cash sum for the suit to go away.

Nuisance suits are different to suits that profit from errors of law by the courts.  Many suits that appear ridiculous win. Their problem is not procedure, but substance.

The proper derogatory term is court error and unjust law, depending on whether other courts would replicate the same bad result. Such suits may make up the bulk of what the public complains of as nuisance suits, but are hard to remedy by procedural reform.

HT: Eric Rasmusen

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