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BASI sued for £500 000

 Poster: A snowHead
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I believe that someone qualified as a solicitor in Australia and Ireland may call themselves solicitor in England although they will need to be "admitted" to the Law Society of England and Wales if they wish to practice within a law firm for private clients. They can however be employed as "Legal Counsel" on the basis of qualifications and experience and clearly Stephen Burke has been employed in senior and challenging roles as Counsel within some large corporations. As an aside it is almost certain that BASI will have agreed to pay SB's legal costs in respect of the membership issue and of course they will have picked up their own legal costs. Settlements on the "steps of the court" are very expensive as all the work has already been done in preparation for the case. Thousands or more probably some tens of thousands of pounds are likely to have been involved.
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FFIRMIN wrote:
As an aside it is almost certain that BASI will have agreed to pay SB's legal costs in respect of the membership issue and of course they will have picked up their own legal costs. Settlements on the "steps of the court" are very expensive as all the work has already been done in preparation for the case. Thousands or more probably some tens of thousands of pounds are likely to have been involved.


Not much "almost certain" about it! This was part of the statement SB posted last week:

"Niall, our legal director has just phoned to confirm that BASI have now finally accepted that they were wrong to dismiss Simon from BASI membership and have also accepted that they will now have to pay all of Simon’s legal costs for having to raise the case in Scotland’s highest court, the Court of Session in Edinburgh."
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Could not a complaint for Gross Misconduct be brought against members of the board now ? This would then ensure at the AGM they could not retain the positions they currently hold.
New nominations could then be accepted for the posts. This could also demonstrate to a court that change is being made by BASI.


And on a footnote hopefully not only BASI have learnt never employ a Burke in a senior position wink
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It seems to me that the damages claim is now indefensible so it will be about quantum rather than liability, surely it will be settled without proceeding to a hearing but in the meantime further costs will be being racked up in preparation for 15 November (without checking I think thats the date of the hearing).
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An "out of court" settlement is what it says it is, so it would not be relevant in that sense, even if it was related, which it is not, or there would be one court case not two.
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I still think that the board should resign, they wanted to remove SB's membership for bringing BASI into disrepute, yet it appears that their actions were not legal, they have had to pay out a considerable sum in legal fees and they have certainly bought the organisation far more bad publicity than SB's actions had.
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philwig - not quite sure what you are saying but it is my understanding that the next hearing is Judicial Review (not quite sure about what) plus the claim for damages. With Simon reinstated into BASI then the specifics of that issue (which would have been heard at the beginning of this month is clearly resolved and the only "out of court settlement" in respect of that would be in relation to the costs incurred by Simon up to the date of reinstatement and withdrawal of the hearing. The fact of reinstatement is not part of an "out of court settlement" and attracts no reduction in any claim for damages. The damages claim is in respect of income lost for the period during which Simon's business was turned upside down by the actions of BASI which I believe (although this is all very complicated) effectively supported the actions of the French in preventing Simon from running his business in Megeve in the manner to which he had adhered hitherto. I have no idea how the measure of damages claimed have been calculated but I would have thought it would be easy to deduct the last season's takings from an average of previous years and to broadly attribute any drop in income to the issues at large. Lots of other computations are no doubt involved but I somehow doubt we shall ever know quite how this is finally settled unless BASI are daft enough not to offer a sensible settlement which would inevitably be cloaked in non disclosure obligations.
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FFIRMIN wrote:
philwig - not quite sure what you are saying but it is my understanding that the next hearing is Judicial Review (not quite sure about what) plus the claim for damages. With Simon reinstated into BASI then the specifics of that issue (which would have been heard at the beginning of this month is clearly resolved and the only "out of court settlement" in respect of that would be in relation to the costs incurred by Simon up to the date of reinstatement and withdrawal of the hearing. The fact of reinstatement is not part of an "out of court settlement" and attracts no reduction in any claim for damages. The damages claim is in respect of income lost for the period during which Simon's business was turned upside down by the actions of BASI which I believe (although this is all very complicated) effectively supported the actions of the French in preventing Simon from running his business in Megeve in the manner to which he had adhered hitherto. I have no idea how the measure of damages claimed have been calculated but I would have thought it would be easy to deduct the last season's takings from an average of previous years and to broadly attribute any drop in income to the issues at large. Lots of other computations are no doubt involved but I somehow doubt we shall ever know quite how this is finally settled unless BASI are daft enough not to offer a sensible settlement which would inevitably be cloaked in non disclosure obligations.


I think what he was getting at is that if the result of the second case were as predetermined as people seem to be treating it, then there wouldn't have been 2 court cases.
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Correct. The loss of earnings started before "ejection" and so were demonstrably not dependent on it. Hence they are separate cases.
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Damages will not be just for loss of earnings there will be a substantial amount for defamation of character, also the possibility of damages if any part of SB being arrested and locked up are a result of the actions of BASI.

Damages can be a very complicated issue and BASI saying about his earnings in previous years does not equate to the damages claimed ( circa £500K ) shows how ill informed these people are. It can only be hoped that if all this information is based on proper legal advice they can then sue the firm for such poor representation.
If BASI want an out of court settlement they have to understand that they will also have to pay SB if they do not want him to make public the terms of the settlement and the amounts involved, If they do not pay to keep him quiet he can sing from the highest church spire to his hearts content about every aspect of the case.



philwig wrote:
Correct. The loss of earnings started before "ejection" and so were demonstrably not dependent on it. Hence they are separate cases.



Yes they did but was the issue regarding the MoU part of the reason for the loss prior to his expulsion?

If a court deems that the withholding of the MoU was wrong and that SB should have been issued one in the first place they could then decide that part of the issue with the French was due to the withholding of the MoU and thus part of any earlier loss is subject to compensation from BASI.
I think everyone posting on here knows just how complicated and also how unpredictable court cases can be and BASI should be aware of this as well. A settlement out of court would be in their best interest and hopefully SB would be open to such an offer, especially if part of the deal was the immediate resignation of the board. Then an investigation into their actions with the possibility of said members facing expulsion, or suspension from the society for a period of time.
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I may be being thick here or I perhaps dont entirely understand what the two cases are about. I thought one was about the ejection from BASI and the other a separate issue relating to the consequences (claim for damages) of the first. There may of course be much more to it than this simple analysis. Obviously BASI can only be held responsible for damages which directly arise from their actions in relation to this whole matter, I dont know if there are implications from an earlier lack of support for Simon when the problems in France first arose. The Court will be looking at "causal links" between what has happened and the losses which Simon says have been incurred, presumably they exist.
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@FFIRMIN, no, two separate issues (although many would say they are closely linked).

The first issue, AIUI, related to Simon Butler's membership of BASI and whether BASI was right to expel him from the membership, on the grounds of bringing BASI in to disrepute. This was settled last week before the court case was heard.

The second issue is, AIUI, whether BASI was right to not issue Simon Butler with the so-called MOU stamp (this is a cross-EU programme currently being piloted where instructors who hold the top level qualification of their ski association are given recognition by way of a stamp attached to their licence, which other EU countries in the pilot programme recognise as providing right of establishment to teach in other EU countries).
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In fact the issue is not that they did not issue the MOU stamp but rather that they decided after many years of issuing it to not do so, in addition they apparently failed to tell SB that they had not issued it but did apparently inform the French Authorities, which may or may not have had something to do with his subsequent arrest, so far as I can tell as an outsider there appears to be no clear reason why they withdrew his MOU according to the regulations in force at the time of the original agreement he should apparently have had it. What they appear to have done is altered the regulations for a second issuing of the MOU and then somehow retroactively decided that this applied to SB and possibly 16 or so others but not to the directors of BASI who had similar waivers, if that is the case and it's a very large IF I'd say that those concerned are going to be in a very difficult situation especially as they are involved in a rival ski school in the same resort. Thus it might be argued that they have not only withheld the MOU that SB should have been entitled to but that they have also attempted to destroy his company to the probable benefit of their own, if SB can prove this to the courts the sum he is asking for may well go up !
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What those two said.

It may be quite a clever tactic. That said, SB's team had the choice, and they decided to settle that one.

Negotiating on the first one probably increases the chance of negotiation on the second: if they'd played hard-ball on the first then they would certainly be doing the same on the second. So this leaves it slightly more open.

BASI's accounts show that they have the cash to settle "round two" out of court, and they may prefer that. Considering the risks, SB may reasonably accept that. I hope they get their day in court, as I think the root issue here needs the disinfectant of strong sunlight.
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@philwig, according to a statement somewhere above, BASI are insured so their cash position makes no difference. If an insurer is involved then I'll be monkey's uncle if anyone gets a day in court because they nearly always mitigate the potential loss by settling unless the believe they have a nailed-on defence. It'll be NDAs all round too so nobody unconnected will hear officially what the settlement is. That would sort the financial damages but the other MOU stuff sounds incredibly complex.
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Simon doesn't strike me as in it for the money and as a man of principle I recon he will want his day in court. Be surprised if he settles...
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@speed098,

I understand there are no non disclosure obligations for the expulsion settlement. There might be some interesting detail to be had from that. Will the insurers be interested in the decision making processes and personnel involved?
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@SkiRider,
Quote:

I think what he was getting at is that if the result of the second case were as predetermined as people seem to be treating it, then there wouldn't have been 2 court cases.


The people making these decisions are making their living from two short planks - any significance?
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@Jimd, If the insurers will be footing the bill they will control all aspects of the court proceedings/settlement. If BASI agreed anything without first getting permission from the bill payer they would probably find themselves footing the bill themselves, as like any insurer theirs will not allow their client to concede without their permission, and will have this written into the policy terms.


SB may not want to discuss the first settlement as even though not under any order it could later be included if the second point is settled out of court and would give him a bit more bargaining power.
I do not know SB, but from what I have seen he is a man of principals as skimottaret, has said above. I would hope he may use that bargaining chip ( non disclosure ) to have certain members of the board removed and disciplinary cases brought against them rather than an increase in money.

I think the only way BASI could possibly concede without discussing with the insurers first would be by the members themselves having an EGM and making a decision as a body, I stand to be corrected though as someone here will know more about this route than me, and it would hinge on the policy wording.
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@rob@rar,
It was also about the way they expelled him if memory serves me right. Even if the grounds and the decision were correct BASI could ( would almost certainly ) loose as I said right at the start just because of the fact it was not a properly constituted disciplinary and the method of informing was not correct ( A person has a right to put forward their case and must be informed of the decision in writing with date of decision, who was present and presiding officers and date the decision ie termination of membership is to take affect from ) They may well also have to state a period before the person could re-apply/join or if it is a lifetime expulsion.
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skimottaret wrote:
Simon doesn't strike me as in it for the money and as a man of principle I recon he will want his day in court. Be surprised if he settles...


Problem is for sb if he turns down a settlement and the court subsequently awards a lower sum he may then not be awarded costs.
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Isn't his primary goal to get the MOU? If it was rightly withheld then no damages, presumably? Equally, if he should have had the MOU damages would follow. It would be illogical for BASI to pay damages whilst sticking to their guns on the MOU
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FFIRMIN wrote:
I believe that someone qualified as a solicitor in Australia and Ireland may call themselves solicitor in England although they will need to be "admitted" to the Law Society of England and Wales if they wish to practice within a law firm for private clients. They can however be employed as "Legal Counsel" on the basis of qualifications and experience and clearly Stephen Burke has been employed in senior and challenging roles as Counsel within some large corporations. As an aside it is almost certain that BASI will have agreed to pay SB's legal costs in respect of the membership issue and of course they will have picked up their own legal costs. Settlements on the "steps of the court" are very expensive as all the work has already been done in preparation for the case. Thousands or more probably some tens of thousands of pounds are likely to have been involved.


Indeed anyone from the EU who is duly qualified can work as legal council in the UK and after 3 years practising UK law in that capacity can apply to the Law Society of England and Wales without first having to take an aptitude test. Compare and contrast with the situation for ski instructors.
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Quote:

without first having to take an aptitude test. Compare and contrast with the situation for ski instructors.



Applies to the BASI board as well!
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jbob wrote:
skimottaret wrote:
Simon doesn't strike me as in it for the money and as a man of principle I recon he will want his day in court. Be surprised if he settles...


Problem is for sb if he turns down a settlement and the court subsequently awards a lower sum he may then not be awarded costs.


It's worse than that. The other side will probably make a Part 36 offer (known as a Tender in Scotland) and if he turns that down and then goes on to lose in court or be awarded a lower figure, he'll be in for both side's costs. Normally he'd be asked to put up the cash just in case.
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@Pruman, good to hear from someone with your expertise, interesting times ahead..
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pam w wrote:
Isn't his primary goal to get the MOU? If it was rightly withheld then no damages, presumably? Equally, if he should have had the MOU damages would follow. It would be illogical for BASI to pay damages whilst sticking to their guns on the MOU


AIUI The Italian Ski Federation were happy to supply him with an MOU last winter. When BASI HQ found out, they wrote to the Italians and asked them to revoke it. The mail sent by BASI to the Italians was put on the web for all to read.
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Maybe a good question with the new season and the court case rapidly approaching.

Are the Italians going to issue SB with a MoU this season ?

Would not look good for BASI in front of a judge, with SB's lawyers showing said Judge a letter from another respected national ski instructor organisation, who have deemed SB should be awarded the MoU.
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Does the MOU need to be issued each year? Is it CPD based?
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There's a clue in the name "Memorandum Of Understanding" - doesn't sound like its law so nobody HAS to recognise it.
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The point is if SB turns up at court and can say to the judge look I have a MoU from the Italians, so what is BASI's problem ?
Are BASI going to say the Italians don't know what they are talking about, or that SB did not give the Italians all the facts ?

Both could be serious for BASI if a judge agrees SB should have his MoU and the Italians issuing one gives strong credence that BASI should have done so, remember the judge will not be a skiing expert and so would give weight to SB's argument when backed by another national organisation.
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Mt wrote:
Does the MOU need to be issued each year? Is it CPD based?
The MOU is a pilot programme. MOU stickers are (or at least have been) issued annually while the pilot has been underway, and the underlying qualifications as far as I understand have a CPD requirement which must be satisfied to keep up to date (BASI's does, I'm assuming that other qualifications do as well).

The pilot programme has been running for three or four years, and longer than was initially anticipated because they have not been able to agree on the final details (which will become a Delegated Act). The pilot programme has been extended a few times, and I'm not sure when in 2016 it is due to expire. If it is due to expire before the end of the season the associations (or in France the trade union) might not issue a stamp for this coming season, in which case instructors will have to use their underlying qualifications to prove their right of establishment (as they have been doing for a decade or more).
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Pruman wrote:
There's a clue in the name "Memorandum Of Understanding" - doesn't sound like its law so nobody HAS to recognise it.
Signatories to the MOU (9 countries?) do have to recognise it as part of their agreement on the MOU.
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@rob@rar, but its an understanding currently and not a law so, if someone like say the French, decided to find a reason to not recognise someone's MOU then there's not much anyone could do about it.
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Pruman wrote:
@rob@rar, but its an understanding currently and not a law so, if someone like say the French, decided to find a reason to not recognise someone's MOU then there's not much anyone could do about it.
Yes, technically that's correct, but I can't see that happening. I think the local gendarme and the DDJS officials now look for the MOU stamp when they control instructors. If France decided to selectively refuse MOU stamps there'd be a massive breakdown in the process and the EU officials driving this process forward would take a dim view, and I'm sure it would seriously compromise France's negotiating position.
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The MoU is countersigned by Government officials from each country, not sure if that gives it more legal weight ?
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@Pruman,

Just because something is not a law does not mean it can be ignored. Those who have agreed to the MoU have agreed to be bound by it, by doing so they can be taken to task and even court for not abiding by the agreement.

A good way to look at is we have laws enforced on us by the state, this ( the MoU ) though is a voluntary law. The first we are all bound to no matter if we agree with it or not. The second you are only bound by it when you agree to be bound.

A pretty simplistic example it does get more complicated but this does sum up the basic idea.
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rob@rar wrote:
Pruman wrote:
@rob@rar, but its an understanding currently and not a law so, if someone like say the French, decided to find a reason to not recognise someone's MOU then there's not much anyone could do about it.
Yes, technically that's correct, but I can't see that happening. I think the local gendarme and the DDJS officials now look for the MOU stamp when they control instructors. If France decided to selectively refuse MOU stamps there'd be a massive breakdown in the process and the EU officials driving this process forward would take a dim view, and I'm sure it would seriously compromise France's negotiating position.


I'm just saying that it could happen. If it is written into French law what the definition of a ski instructor is, that would over ride any side agreements that aren't written into law (yet). From what I have read, the French regard SB as having broken their law so I would imagine that would be enough for them to do the shruggy shoulder thing and decide not to recognise a MoU in his particular case.
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