Quaint legal phrases

In recent years, things have been hotting up in the spectacles game.

An Italian-based company, Luxottica, has taken over a number of local businesses, including OPSM. Specsavers, ultimately owned by a UK-based company, has entered the market at (as the name is presumably intended to imply) at the bargain end.

THe battle has been fierce, in the market place and also in the courts.

Last year, a hapless employee of Luxottica who emailed various company documents to her home address before resigning to take up a position with Specsavers became meat in the sandwich when she was pursued for return or destruction of the documents. Pretty well as soon as she told Luxottica she was leaving, she was told to leave the premises. There was an email audit and Luxottica was straight off to court to get ex parte relief without even telling the employee. Fairly soon after she offered to do return or destroy the documents, but Luxottica pressed on, somewhat amazingly but technically correctly, for damages for breach of copyright. White J awarded a purely nominal $10 for breach of copyright and ordered that Luxottica pay her costs after the first day of the trial and that there be no orders for costs up to then. The decision was upheld on appeal.

More recently, at the beginning of this year, Luxottica took exception to an advertising campaign launched by Specsavers which included comparisons to prices available at OPSM. As one might expect, [as the judge rather drily put it] the comparison was to the disadvantage of OPSM. Luxottica sought urgent interlocutory relief to restrain the advertisements as misleading and deceptive. But it turned out that, on an interlocutory basis at least (where evidence does not have to be given directly and hearsay evidence is acceptable) Specsavers was able to repel that application by reference to statements provided by “mystery shoppers” who said they had gone to OPSM shops and obtained the price quotes to back Specsavers’ claims about OPSM up.

This was not the end of the matter though, because although Luxottica had failed to stop the advertisements straight away, the main case, on a final basis, could yet be fought. Luxottica wanted to find out more about these mystery shoppers so it could check the accuracy of their claims about the transactions in question. Specsavers was only prepared to tell them on condition that the legal advisers to Luxottica and relevant employees enter into confidentiality undertakings. There were various technical arguments, but in the end Specsavers was successful (with another bad costs outcome for Luxottica) because, in particular, Luxottica could not say that this confidentiality regime would impede it in its preparation of its case. Conversely, Specsavers said that it intended to keep on mystery shopping, and that it needed to preserve the anonymity of the mystery shoppers for this purpose. One reason for this was that mystery shoppers needed to have the relevant optical condition to seek the glasses needed for the comparisons in question. Not everyone can be a mystery shopper.

It was this passage which caught my eye:

“evidence also makes it clear that there is a relatively small group of mystery shoppers who can carry out exercises such as that in the present case. Those mystery shoppers need to be people with a current prescription for spectacles, falling within a defined range of correction. It is not a matter of going out and whistling in the street, or praying tales.”

What on earth did his Honour mean about “praying tales”?

Funnily enough, it is a procedure, in NSW until 1977 available to the Sheriff when assembling a jury, and historically available even to the parties, to simply drag people off the street or from wherever to make up the numbers when an empanelled jury fell short of the requisite numbers.

I found this explanation in an article from the 1984 Sydney Law Review:

Before the Jury Act, 1977 (N.S.W.) was passed the court, if faced with an insufficient number
ofjurors, was empowered to command any person in the street outside the courthouse to present himself
for jury service. Thus, sheriffs could snatch people from their businesses and force them to be jurors.
This practice was called “praying of tales”. Because of the injustice and imposition praying of tales
caused, the practice was discontinued. See Parl. Deb. N.S.W. 4484 (Hansard 1977).

So it’s not just the phrase, but the legal practice which rather quaintly persisted until quite recently (though not, as in an earlier time, a power exercisable by the parties on either side.

At first I thought the “tales” must be related to “tally” (because of the number of jurors falling short) but on further investigation, it is tales as in talesman, as this link from God knows what jurisdiction, makes clear:

tales de circumstantibus

[Latin: such of the bystanders]

If a sufficient number of jurors do not appear upon trial, either party may pray a tales, that is, require a supply of such persons from the environs of the court in order to make up the deficiency (Juries Act 1974 s 6, 11).

I hope you found that interesting.

For what it’s worth, it is my experience that competition of this sort and (conversely) jealous guarding of an established brand are fiercest when the actual difference between products is the least. I have always considered different brands or even models of spectacles to fall fairly squarely in that area, like different brands of sunglasses.

2 Responses to “Quaint legal phrases”

  1. Victor Says:

    ‘It was this passage which caught my eye…’

    Of course it did…you’ve been writing about spectacles…


  2. ken n Says:

    Nice post. No day is completely wasted when you learn something new, I say.
    And your last para is reasonably accurate.

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