disclosure 18 - nov 11 18 1011… · andrew relton jim sherwood julian smart kathy széputi you...

November 2011

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Birmingham63 Temple RowBirminghamB2 5LST 0121 643 8777F 0121 643 4909

LeedsPark Row House19–20 Park RowLeeds LS1 5JFT 0113 236 2002F 0113 244 2002

ManchesterKing’s House42 King Street WestManchester M3 2NUT 0161 236 2002 F 0161 832 7956

BristolBroad Quay HousePrince StreetBristol BS1 4DJT 0117 975 8649F 0117 905 8810

LiverpoolCastle Chambers43 Castle StreetLiverpool L2 9SUT 0151 236 2002F 0151 236 2585

Southampton2 Charlotte PlaceSouthampton SO14 0TBT 023 8023 6464F 023 8023 6117

Cardiff23 Neptune CourtVanguard WayCardiff CF24 5PJT 02920 447 667F 02920 489 041

LondonSalisbury HouseLondon WallLondon EC2M 5QNT 020 7638 2811F 020 7920 0361

Stockton-on-TeesInnovation House, Yarm RoadStockton-on-Tees TS18 3TNT 01642 661 630F 01642 661 631

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Editorial board

Catherine Hawkins (guest editor)

Helen Cafferata

Linda Coppell

Val Jones

Alistair Kinley

Jenny Moates

Andrew Relton

Jim Sherwood

Julian Smart

Kathy Széputi

You have been sent this material becauseyou have previously registered your interestin receiving information from BerrymansLace Mawer LLP. If you no longer wish toreceive the mailing, please unsubscribe.

This document does not present a completeor comprehensive statement of the law,nor does it constitute legal advice. It isintended only to highlight issues that maybe of interest to clients of Berrymans LaceMawer LLP. Specialist legal advice shouldalways be sought in any particular case.

Disclosure is published by the marketingdepartment of Berrymans Lace Mawer(Castle Chambers, 43 Castle Street,Liverpool L2 9SU) on behalf of BerrymansLace Mawer LLP and printed by The PureprintGroup.

Solicitors with offices in Birmingham, Bristol,Cardiff, Leeds, Liverpool, London,Manchester, Southampton and Stockton-on-Tees. Berrymans Lace Mawer is a tradingname of Berrymans Lace Mawer LLP, alimited liability partnership registered inEngland under number OC340981, whichis authorised and regulated by the SolicitorsRegulation Authority and accredited to qualitystandards ISO 9001 and Lexcel. Theregistered office is at King’s House, 42 KingStreet West, Manchester M3 2NU where alist of members is available for inspection.

Berrymans Lace Mawer

Editorial 2

An ill wind for odour claims?Michael Salau 3

‘Rio Carnival’ – the privacyparty goes on Tim Smith 6

Jackson implementation: goingthrough the phases?Alistair Kinley 9

Once bitten, twice shy: fraudand double jeopardyCraig Nunn 10

Casting the netClaire Laver 12

‘Right-touch regulation’: turmoil in healthcareJanet McWhinney, Victoria Swanton 14

Litigants-in-person: the practicalitiesClaire Pritchard 16

Risk v ResponsibilityStuart Giddings 18

All in a day’s workHenry Bermingham 20

Riding the risk: animal mattersLouise Abbott 22

A jumpy ride ahead?Matthew Perkins 24

Less tape, more red blood?Atiyah Malik 26

Update on agency workers: the new regulations amendedLaura Newcombe 27

The perils of public inquiriesJim Sherwood 28

Who’s the winner?Greg McEwen 30

Consumer law ‘MOT’ checkChristopher Coughlin 32

Financial information or financial advice?Leonie Salter,Christopher Fitton 34

The root of the problemAndrew Plunkett 36

Ogden Table updateHenry Kirkup 38

BLM ‘Store Wars’ CSR event raises £21,000 forBarnardo’s 39

BLM briefing Natalie King 40

Disclosure November 2011 1

Cert no. SGS-COC-0620

Visit www.blm-law.com forelectronic copies. Information iscorrect at the time of printing.

© Berrymans Lace Mawer LLP2011.

ISSN 1475-4711. Issue 18.

We are pleased to offer you our latest edition articles andobservations on a number of issues that we hope are timely andinteresting.

The articles are on diverse topics but there may be a theme here;there seems to have been an outbreak of commonsense in somequarters. Our Head of Policy Development, Alistair Kinley, hasreported on the hopefully imminent measures to help contain theclaims culture. Tim Smith comments on the latest in the judicialbalancing act between public interest and privacy with particularreference to Mr Rio Ferdinand.

Other articles report on a commonsense approach to financialadvice negligence, to awards for nuisance, not to mention thelatest on costs and containing them.

A particular interest of mine is dealing with litigants-in-person, notleast because I have personal experience of some of the mostdifficult of these.

There have been developments to delight but, as ever, there is aneed at least to be ready to man the barricades; HenryBermingham warns of attempts to extend the law of negligence withregard to injury claims outside the field of employment, which willbe detrimental not only to the insurance industry but arguably tosociety given that, ultimately, we all shoulder the costs of claims.

I hope you find it all interesting.

Catherine HawkinsPartner

Berrymans Lace Mawer2 Disclosure November 2011

‘It follows that there is noauthority, binding or otherwise,which addresses the critical issueof principle in this case: is theoperator of a landfill site, whocomplies with the detailedrequirements of his permit, andis not alleged to be negligent,liable in nuisance for theinevitable consequences of thosepermitted activities?’

This is the crux of the issues decided atfirst instance by the Honourable MrJustice Coulson in the TCC decision ofDerek Barr & Others v Biffa WasteServices Limited [No3] [2011] EWHC1003 (TCC). There is no doubt that thisis a landmark judgment on theinteraction between the currentenvironmental permitting regime andprivate nuisance. The BLM constructionand environmental group has beeninstructed on a number of cases whereodour emissions are said to beproblematic which have led to largegroup litigation claims. Essentially, theBarr v Biffa case (also known asWestmill Landfill Group litigation) holds

that compliance with an environmentalcompliance may be a defence to anaction in nuisance.

In Barr, Coulson J defined nuisance as‘a condition or activity which undulyinterferes with the use or enjoyment ofland’. Whilst the law accepts that thereis a need for some ‘give and take’, inthe event of unreasonable activities acourt can award damages, taking into account the character of theneighbourhood and the frequency,intensity and duration of theinterference. Many industries, includingthose in the food and waste industry,are regulated by the EnvironmentalPermitting Regime, and any companythat operates a process covered by the regime must apply for anenvironmental permit to operate thefacility in accordance with the permit.Permits will contain a number ofconditions including those relating tothe prevention of odour outside thesite. It is in Barr that the courts for thefirst time have confirmed thatcompliance with the EnvironmentalPermitting Regime can provide adefence to common-law nuisanceactions.

Disclosure November 2011 3Berrymans Lace Mawer

Cases have ledto large grouplitigation claims

An ill wind for odourclaims?

Facts of the case

A number of claimants pursued a claimin nuisance against Biffa asserting thatover a five-year period they had beenaffected by odour emanating frompretreated waste at the Biffa site. Asindicated earlier, the claim was innuisance only, there being noallegations of negligence or ofbreaches of the waste-managementpermit. Four main issues arose from thejudgment:

1 Whether Biffa had a defence ofstatutory authority.

2 Whether the use of the site as alandfill site was a reasonable use ofland.

3 The appropriate threshold, being atthe point of which the odourbecame a nuisance.

4 The amount of damages available.

With regard to the first question,Coulson J confirmed that Biffa has nostatutory obligations, and therefore thefactors giving rise to a successfuldefence of statutory authority wereabsent. Biffa was not providing servicesto the wider public and was operating alandfill site on an entirely voluntarilybasis for commercial profit. In terms ofreasonable use, the issue was whetheror not a claim could be pursued incircumstances where the activitiesalleged give rise to the nuisance andare being carried out in accordancewith a detailed environmental permit.The judge said that the carrying out ofactivities in accordance with the permitwould constitute compliance with allrelevant legal obligations and thereforewould afford a complete defence to theclaim in nuisance. Commentators haveagreed that this accords with therelevant legislation and the terms of thepermit, but more importantly it accordswith the modern nuisance cases whichconfirm that claims at common lawcould be made against Biffa, but only ifthey arose out of negligent acts andomissions as opposed to the simpleperformance of permitted activities.

Prior to this case, the question of theinteraction between nuisance atcommon law and nuisance in the

Environmental Permitting Regime hadnot been directly examined by thecourts, although many commentatorshad suggested that the position ofenvironmental permits was similar tothat of planning consents, eg, thatplanning permission does not of itselfauthorise what would otherwiseconstitute a nuisance. The importantpoint of the discussion of this aspect ofthe case was that Coulson J held thatthe Environmental Permitting Regimecan be differentiated from the planningregime in that an environmental permitcontains detailed conditions about theoperation of an activity and is closelyregulated by the Agency, whereasplanning permissions often simplypermit development at a specificlocation and usually have only a limitednumber of conditions.

The judge then went on to consider thetwo further points of threshold anddamages, both of which are ofenormous interest to a number of BLMclients. Readers may be aware of theoften unrealistic and excessiveexpectations of claimants in relation tonuisance claims. Claimants seekingsums in excess of £25,000 for littlemore than 12 weeks’ intermittentnuisance are not unheard of, and it isfair to say that even the bare minimum‘small’ nuisance claims often seekdamages of a few thousand pounds.After a detailed analysis, Coulson Jheld that the appropriate threshold forone odour complaint was one odourcomplaint a week or essentially 52 ayear. In Barr v Biffa, only two of the 30new claimants had experiencedinterference above this threshold, andthe judge therefore confirmed that evenif his analysis of the interaction betweenthe common law of nuisance and theenvironmental regime was wrong, onlytwo claimants had demonstrated a levelof interference sufficient to succeed intheir claim. Whilst, as always, CoulsonJ confirmed that this case is factspecific, such guidance is helpful toanyone defending nuisance claims.

In the judgment reference is made toan expectation that claimants shouldkeep a contemporaneous record of thecomplaints over a relevant claim


Even thebare

minimum‘small’

nuisanceclaims

often seekdamages of a few

thousandpounds

period. This is particularly helpful asclaims have often been seen where allthe claimants are claiming the samenuisance to the same extent over thesame period. These claims are oftenunsupported by contemporaneousevidence and instead defendants arefaced with a number of generic witnessstatements all containing the samealleged facts in support of their claim.

Coulson J then went on to concludethat in this instance the quantum ofgeneral damages was £1,000 for eachyear the threshold was exceeded. Thisis an extremely low figure compared tothe amounts normally claimed byclaimants.

This judgment is of enormous interestto many industries not just the wasteindustry, and the appeal is likely to beheard in January 2012. The judgment,at least for the time being, should givecomfort to defendants facing claimswhere they can be sure that they havea well-regulated site, which is operatedwithin the terms of the correspondingenvironmental permit. It should, ofcourse, be noted that often nuisanceclaims are combined with the threat ofan injunction or abatement notice, andthis can be a bigger issue than thenuisance claims themselves. (Althoughit should also be said that applicationsfor an injunction are also often simplya tactical manoeuvre in the quest forsignificant damages.)

Since the decision was handed downthe main area for discussion seems tobe the assumption that negligence canonly be found in the breach of apermit. It has been pointed out thatnegligence could of course be foundindependently of regulation, in thesense that in order to be a reasonabledefendant an operator might berequired to go beyond regulation, andconversely it may well be that anoperator had been operatingreasonably, but on occasion has failedto comply with legislation. This point islikely to continue to be a fertile area fordiscussion.

One further point to make relates tothe issue of Part 36 offers. During the

case Biffa became aware that theclaimants were only covered for up to£1 million under the terms of an after-the-event insurance policy. Additionally,the claimants were only severally, andnot jointly, liable for the defendant’scosts. The defendant sought a cost-capping order, bearing in mind that itconsidered the costs were likely to besomewhere between £2 and £3million, with the claimants’ costsestimated at being approximately £4million (including the 100% upliftsought under a CFA). As such, thedefendant was likely to be left out ofpocket for a sum in excess of £2million with the prospect of enforcingagainst the individual claimants, on thebasis that the 163 households wereonly severally liable for their share.

At the hearing, Coulson J declined tomake a costs-capping order althoughhe reached a compromise whenmaking an order that limited theclaimants’ costs recovery to the amountof their most recent costs estimate ofapproximately £1.4 million.

As is now known, the claimants wereultimately unsuccessful, and it isunderstood that the defendant hadmade a Part 36 offer which was ofcourse not beaten. So Biffa has anentitlement to all of its costs which,bearing in mind the aspects of thiscase, are presumably recoverable onan indemnity basis. So, as unrealisticas it may seem, the claimants face theprospect of making up the £2 millionplus shortfall. Surely a stark warning toclaimants who perceive nuisanceactions as being a ‘free ride’ to a fewthousand pounds!


Micheal Salau

Partner

This judgmentis of enormousinterest tomany industries

‘Rio Carnival’ – the privacy partygoes on Is the law of privacy one big party for claimants?

The law of privacy has been a legaland political football in recent months.The media has complained that public-interest stories are being suppressed asa result of a law which has beendeveloped by the courts behindParliament’s back. Others have pointedout that Parliament was well awarewhen the Human Rights Act came intoforce that it would bring with it a law ofprivacy and specifically decided thatthis was an area for the courts todevelop rather than one to be dealtwith by statute.

It certainly seems to be the case thatmany pre-publication injunctions wereobtained on the basis of claims relating

to misuse of private information andthat it has been much easier to obtaininjunctions on this basis than indefamation (essentially because inprivacy cases it is often straightforwardto show that the material is private andthe harm cannot really be compensatedby damages, whereas in defamationclaims the courts are reluctant to grantinjunctions where defendants argue thatthey have a defence such as truth).While the newspapers were on the frontfoot exposing MPs in improper expenseclaims, there was growing demand fora change in the law. However, timeshave changed. It is now the mediawhich face accusations that they havecrossed the line with a whole host ofclaims being brought against the Newsof the World for phone hacking and theLeveson Inquiry having been given abroad remit to look at the media andits conduct.

It was against this backdrop thatjudgment in Rio Ferdinand’s claimagainst the Sunday Mirror was handeddown.

The facts

In April 2010, the Sunday Mirrorpublished an article under the headline‘My Affair with England Captain Rio’,which gave an account of Ferdinand’srelationship with Ms Carly Storey. Theyhad met in 1996 or 1997 whilst he wasa teenager and she was 17. They driftedapart from 2000 until 2002 whenFerdinand moved to Leeds United. In2002 they resumed contact but did notmeet after May 2005. They were not incontact between May 2005 andOctober 2007 but then resumedcontact.

As many will recall, Ferdinand wasappointed England captain following theremoval of John Terry by Fabio Capello.


The media faceaccusations

At the time Capello said that:

I asked always that the captain is anexample to the young, for thechildren, for the fans … a rolemodel outside the game – in life aswell.

In the period between 2002 and 2005,the relationship between Ferdinandand Ms Storey had been an intimateone despite the fact that Ferdinand wasin a relationship with Rebecca Ellison,who he married in 2009. AlthoughFerdinand became engaged in July2007, the article stated that he hadcontacted Ms Storey in October 2007suggesting that they meet up at thehotel in Hertfordshire where theEngland squad were staying before akey Euro 2008 qualifier againstEstonia.

The article complained of noted thatFerdinand had had a wild reputationas a young footballer but, when he wasabout to become a father in 2006,sought to change his ways and setabout transforming his image. In alengthy interview in the News of theWorld in January 2006, Ferdinand hademphasised that he was going to be afamily man. In his autobiography(which was published later that year)Ferdinand indicated that he realisedthat he had a responsibility off the fieldbecause children look up to footballersand want to be like them. In a furtherinterview with The Times in May 2008,Ferdinand noted that people did notbelieve that his managers would havegiven him the captain’s job if they didnot trust him or think that he wasresponsible and that made peoplebelieve that he was a reformedcharacter.

Human rights

Privacy claims often involve a clashbetween Article 8 of the EuropeanConvention on Human Rights (whichprovides for the right to respectful,private and family life) and Article 10(which provides protection for the rightsand freedom of expression).

The judge examined the previous case

law and noted that it was accepted thatthe correct approach was thatexpressed by the Court of Appeal inMcKennitt v Ash [2006] EWCA Civ1714. In McKennitt, the court hadindicated that where a complaintrelated to the wrongful publication ofprivate information, there was a two-stage test. First, the court had to decideif the information was private in thesense that it was protected by Article 8.If not, that was the end of the case. Ifthe answer was that the informationwas protected, then the second stagewas to consider whether, in all thecircumstances, the interests of theowner the information must yield tothe right of freedom of expressionconferred by Article 10. This is oftenreferred to as the ‘balancing exercise’.

In relation to the first question,Ferdinand argued that the informationwas protected. The article includeddetails of text messages betweenFerdinand and Ms Storey whichFerdinand argued constitutedcorrespondence (which is expresslycovered by Article 8). Ferdinand alsoargued that private relationships,particularly those involving sexualrelationships, were established asbeing matters where the individualshad reasonable expectation of privacy.The newspaper argued that theposition was not so straightforward andthat an adulterous affair was ofsignificantly less importance thaninformation relating to matters such asan individual’s health and that explicitdetails of Ferdinand’s sex life werealready in the public domain.

The judge felt that the article wasprotected by Article 8. The article hadbeen billed as an exclusive and evenon Ms Storey’s evidence, knowledge ofthe relationship was confined to asmall circle of friends and family. Thejudge also accepted that sexualbehaviour in private was one of thecore aspects of individual autonomythat Article 8 was intended to protect.He therefore found in Ferdinand’sfavour on the first question.

The second element of the test,balancing Article 8 against Article 10,


Privacy claimsoften involve aclash

involved an ‘intense focus’ on thecomparative importance of the tworights in the specific context of theparticular case. The newspaper arguedthat Ferdinand had projected an imageof himself as a reformed character andthat the attempted meetings with MsStorey impinged on his professional lifeas they took place whilst he was stayingwith the England football team. Thenewspaper also argued that there wasa public debate as to whetherFerdinand was a suitable person to beappointed as England captain followingthe dismissal of John Terry. Ferdinandargued that the account put forward byMs Storey did not show that he had liedin his previous interviews and said thathis appointment as England captainprovided no legitimate excuse for thepublication of his private information.Ferdinand argued that Ms Storey hadno story to tell that was her own asopposed to his and that the articleintruded on his private life further thancould be justified.

The judge found that there was publicinterest in the article. Whilst on onelevel it was a kiss-and-tell story it wasstill possible for such a story to be inthe public interest even if the reasonsbehind the informant providinginformation were ‘less than noble’. Thejudge considered that Ferdinand’sprevious interview with the News of theWorld was significant. That interviewhad been set up by Ferdinand’spublicity agent and it was clear thatFerdinand had wished to portrayhimself as a reformed character. Otherarticles had followed the same theme(that Ferdinand had reformed). Thejudge also felt that a further factor inthe public interest was Ferdinand’sappointment as England captain. Thejudge referred to statements by theChief Executive of the FootballAssociation that footballers had toaccept that they were role models andto Fabio Capello’s statement, when hetook away the captaincy from JohnTerry that:

It was not good because I alwaysask that the captain is an examplefor the young, the children, for thefans. It was not good.

The sports minister had alsoemphasised that, as captain ofEngland, there were widerresponsibilities. The judge felt that formany people, the captain of England’sfootball team would be regarded as arole model. The issue was then whetherthe article reasonably contributed to thedebate as to Ferdinand’s suitability forthat role.

The judge felt that the newspaper wasentitled to place the relationshipbetween Ferdinand and Ms Storey incontext and to set out backgroundinformation relating to it. No covertphotography was involved and thephotographs that accompanied thearticle were ‘unexceptionable’. As aresult the photographs added little(contrary to the position in the previousclaim by Naomi Campbell against theDaily Mirror). Overall, the judgeconcluded that the balancing exercisefavoured the newspaper’s rights tofreedom of expression over Ferdinand’sprivacy rights.

Conclusions

This case may go some way toreassuring the press that the right toprivacy will not always trump the rightof freedom of expression. It alsoprovides further confirmation that thedefinition that the court has given of a‘role model’ will be relatively broad andcan include individuals such as theEngland football captain. There is nodoubt that this will be very good newsfor many tabloid news editors (or thosethat are left). It will also be good newsnot only for specialist publishers suchas newspapers, magazines andwebsites but for all those who regularlypublish material in news articles inmagazines, circulars and on theinternet, and for their insurers.


Tim Smith

Partner

The right toprivacy willnot alwaystrump the

right offreedom ofexpression

Tim Smith

Partner


Jackson implementation: goingthrough the phases?

The Jackson review of costs began in autumn 2008.That year’s university intake has since graduated,but the costs review is still very much underexamination. The Jackson syllabus of costs andprocedural reforms will take fully another yearbefore it has completed its course and is enacted inrules and regulations.

It could be said that the review is now in its fifthphase. The first was the preparation for consultation;the second, the Jackson consultation itself; the third,the publication of the final report. The fourth was theMinistry of Justice’s own consultation on theproposals and now the fifth – and critical phase – islegislative implementation.

Part 2 of The Legal Aid, Sentencing and Punishmentof Offenders Bill makes the essential changes:stopping the recoverability of success fee uplifts andATE insurance premiums from defendants. On theone hand, these clauses may benefit from thelegislative priority attached to a flagship piece ofcoalition government legislation (primarily aimed attackling the deficit by reducing the Ministry’s costbase). On the other, the Bill is highly controversialand its main provisions could dominateParliamentary debates with the risk of limited scrutinyof the ‘Jackson’ clauses.

In either case, it seems all but certain that this timenext year the sixth phase of the review will begin:how it all actually works in practice. It is worthremembering that the proposals will apply to all

types of civil litigation and are notlimited to personal injury claims (even ifthe perceived problems with ‘no win,no fee’ litigation are at their most acute

in that sector).

Without doubt this will bethe most

interesting phase of all. The prospects of successfullytackling costs appear good. The Bill stops therecovery of success fee uplifts from defendants, andthe judiciary is presently examining closely how toincrease general damages (as recommended) toprovide funds to pay for that. The Bill also stops ATErecovery, and the Civil Justice Council has recentlyset out proposals on how qualified one-way costshifting should operate to protect claimants in theabsence of ATE. The government has also justannounced a ban on referral fees in personal injuryclaims – which will also now be included in the Bill– after which it may well look at reducing fixed costsand/or hourly rates as a consequence of takingreferral fees out of the system.

Only in this final phase will BLM, and you, ourclients, have a clear indication if the problemidentified back in 2008 by the then Master of theRolls – ‘who was concerned at the costs of civillitigation and believes that the time is right for afundamental and independent review of the wholesystem’ – has been adequately addressed by theenactment of Sir Rupert Jackson’s proposals.

Implementation is set for October 2012. Somepolicymakers talk of a ‘big bang’ approach. That isnot mere hype, since implementation will clearly bea ‘game-changer’ forcosts in civil claims inEngland and Wales.The big question is:are you ready?

Alistair KinleyHead of policy development

Once bitten, twice shy: fraud and double jeopardy

Fraud has widespread implications upon the generalpublic, who often have no idea of the level of thoseimplications. As an example, and arguably mostnoticeably, the average motor insurance premiumhas increased by around 40% over the last yearalone. Undoubtedly this is due to the ever-increasingnumber of fraudulent claims presented to insurers.The time for insurers to take matters into their ownhands has certainly arrived and as illustrated below,insurers are already taking strong action againstfraudsters including those with genuine claims whoseek to ‘overegg the pudding’.

Recently the court had to consider whether the raisingof fraud, or the casting of doubt on a claimant’scredibility in proceedings which are thencompromised by agreement, creates an estoppel (aprecluded argument) to additional matters of fraudbeing raised within subsequent related proceedings.

Exaggerating for financial gain?

In one particular case, the claimant, an employee ofa leading insurer’s policyholder (Smith), pursued aclaim for personal injury arising out of an accident atwork. It was alleged by the claimant that he hadsustained a spinal injury to two vertebrae andassociated moderate depression. The claimant’s casewas that he was fit for only light work and his claimincluded a schedule of loss amounting to £420,000,including a claim for loss of future earnings. Theclaim relied upon expert evidence from anorthopaedic surgeon and a consultant psychiatrist.

Smith, who was not a party to this appeal, filed adefence admitting some loss but denying the extentof such loss and, further, pleading that the claimanthad ‘exaggerated his difficulties in recovery andcurrent physical condition for financial gain’. Thedefence was supported by video surveillance whichwas permitted into evidence and which made clearthat the claimant’s honesty and credibility were calledinto question.

The video surveillance was inconclusive and so,anticipating the likely outcome at trial, the insurermade a payment into court of part of the value of theclaimant’s pleaded claim in the sum of £135,000,representative of approximately one third. This sum

was eventually accepted by the claimant and theterms of settlement were enshrined within a TomlinOrder.

False representations …

Two years later, the claimant’s neighboursapproached Smith with information that they hadlived next door to the claimant while the firstproceedings were ongoing and that, by theirrecollection, there was nothing wrong with him,however, he was pretending that there was. Forexample, the claimant could walk without difficultybut when going out he used sticks as he was awareof the possibility of surveillance. On the neighbours’evidence the claimant had recovered completely oneyear before the claim was compromised.

Then … action!

The insurer issued a claim against the claimant onthe basis that the settlement of the first action wasobtained by false representations which were knownto the claimant to be fraudulent or were reckless asto their truthfulness. As a result of the falserepresentations the insurer had suffered losses in theregion of £72,000, being the difference in whatwould have been paid to the claimant had the truthabout the claimant’s recovery been known. Theclaimant responded with a defence which contended,amongst other things, that the insurer’s action wasan abuse of process as the cause of action, that offraudulent misrepresentation, had beencompromised by the Tomlin Order filed at court inthe original claim and that all issues of bad faith hadalso been compromised.

The claimant applied, pursuant to rule 3.4 of theCivil Procedure Rules, to strike out the insurer’sclaim; this failed in the first instance, but on appealthe circuit judge ruled that the Tomlin Order hadcreated an estoppel by ‘res judicata’ (a matteralready adjudicated upon). It was the court’s viewthat there was ‘no material difference’ betweenSmith’s allegation of exaggeration and the insurer’slater allegation of fraudulent misrepresentation. Theissue of fraud per se was res judicata and there wasno judicial discretion in respect of the new andadditional evidence relied upon by the insurer, as


considered in Johnson v Gore Wood & Co [2002]EWHC 776 (QB) which advocated a broad,

merits-based judgment.

Appeal

In the instant case the Court of Appeal (CA)concerned itself with two primary issues. First,whether the lower court had erred in determining thata claim compromised by Tomlin Order created anestoppel per se and, second, whether the actionbrought by the insurer was an abuse of processpursuant to the judgment in Johnson v Gore Woodor whether discretion existed in this regard.

Lady Justice Smith, delivering the lead judgment,overruled the decision of the lower court. The CAagreed that where a claim is defended on thegrounds of fraud and compromised, and where asubsequent action for damages is based upon theself-same fraud, the second action is estopped by theprior determination of the issue. The estoppel willonly apply, however, if it is clear that the issue raisedhas already been compromised. In allowing theappeal the judge found that to create an estoppelthe two allegations must be essentially the same andthere must be a specifically identifiable allegation offraud and an attempt to repeat that very allegation(emphasis added).

The agreement described within the Tomlin Order,said to be indistinguishable from a Consent Order,was not an agreement as to the extent of theclaimant’s exaggeration or whether the claimant hadperpetrated a fraud at all. Smith, backed by hisinsurers, had simply compromised the value of theclaim.

Dealing with the question of abuse of process, thecourt considered Johnson v Gore Wood and ruledthat there was nothing in the nature of harassment inthe insurer’s proceedings and nor was the claimantbeing ‘vexed more than once by the same

allegations’. Rather, the action was founded uponnewly obtained evidence which neither Smith nor theinsurer could have been expected to discover duringthe first action. The court considered the jointprinciples of purity of justice and finality of litigationand found that in this case the public interest in theintegrity of the administration of justice and theinsurer’s private interest in seeking to investigate theallegations of fraud far outweighed any publicinterest in the finality of litigation. Accordingly, theinsurer’s claim was not an abuse of process and theinsurer was therefore entitled to pursue its recoveryaction against the claimant.

Interests of justice prevail

This is an excellent result for insurance companiesand demonstrates that a compensator will not beestopped from raising issues of fraud on subsequentoccasions providing the allegations are not identical.The outcome also shows that, even several yearsafter a claim being compromised, those committingfraud can and will be pursued for damages.

The case also demonstrates that the interests ofjustice will ultimately prevail and that insurers are notonly taking matters into their own hands butsucceeding when doing so. The underlying messageis that fraud will not be tolerated by insurers andfraudsters should think twice before instigating afraudulent claim, whatever the format. Anotherstrong victory for the benefit of insurers and thewhole insurance industry.


Craig NunnAssociate

Tomlin OrderThis is a form of a consentorder which brings about astay of proceedings to allowfor compromise by way of anappended schedule detailingthe terms of the compromise.

Casting the net

Are fraudsters moving away frommotor fraud into other areas? Ifso, what challenges do insurersface as a result?

Historically insurance fraudsters haveconsecrated their efforts on motorclaims fraud and ‘crash-for-cash’scams. The reasons are obvious whenlooking at a simple economic model.The financial return in terms ofcompensation for three or fourpassengers allegedly suffering with neckinjuries with a 12-month prognosis faroutweighs the expenditure, which isoften the cost of a low-value vehicleand one month’s insurance premiumpayment.

The financial exposure to insurers hasbeen high which has led to the industrydeveloping sophisticated methods ofdetecting and investigating motorclaims fraud in a bid to combat it. Inturn the fraudsters seem to take greaterrisks with their own lives and those ofother road users to secure a return ontheir ‘investment’ and look to presentclaims in other areas of insurance thatare open to exploitation.

A number of insurers have noticed amarked increase in the presentation ofsuspicious claims from an employers’and public liability perspective. Oneleading insurer identified in excess of£10 million of casualty fraud in the firsthalf of 2010.

Casualty fraud is easier than motorfraud to commit for many reasons,though the most obvious is the fact thatyou do not need to physically crashcars together to present a claim. Thefinancial ‘investment’ is minimal ifanything at all. Once a pothole in thecycle lane, a paving slab in the street ora hazard in the workplace has been

identified as a potential cause of injury,inevitably the claims will follow.

Other sources of increased fraudulentactivity are claims presented by thepolicyholder. Animal and travelinsurers, for example, have seendramatic increases in the levels ofsuspected fraudulent activity in the pasttwo years.

A leading insurer specialising in equineinsurance has confirmed that it hasexperienced a fourfold increase insuspected and proven fraudulent claimsbetween 2008 and 2010. One of thedifficulties in investigating animal-related claims fraud is the fact thatveterinary records do not follow theanimal, so making it easier to presentmultiple claims for the same loss.

Insurers specialising in travel insurance


The financialexposure toinsurers has

been high

2009The total value of detected GI claimsfraud was £840 million, up 15%from 2008.

2010The figure was £919 million, a 9%increase on 2009 (opportunisticfraud accounted for 70%).

Jan 2011The NFA Annual Fraud Indicator suggests that the total value for UK fraud in all sectors is £38.4 billion.

claims have also seen a rise infraudulent claims. Fraud in this area isnotoriously difficult to prove, but withthe aid of foreign police forces taking atougher stance on bogus claims,insurers are able to fight back. Anothertrend for travel fraudsters is to takeadvantage of owning two policies of

insurance – household and travel –which both cover the same risk and tosubmit claims for the same loss onboth.

Identifying a disingenuous non-motorclaim can be difficult. So how doinsurers begin to validate fraudulentnon-motor claims?

The answer is, with some difficulty. Thefirst lines of enquiry in a suspectedmotor fraud claim start with desktopsearches of open sources on theinternet and other specialist databasesunique to the motor insurance industry.Unlike motor claims fraud, thedatabases available and data sharingbetween insurers dealing with othertypes of potentially fraudulentinsurance claims is somewhat limited.For example, if an employee has

presented a claim against his employerfor an accident at work, there iscurrently no means of checkingwhether this person has ever madesimilar claims against previousemployers. In addition, the travelfraudster who submits a claim via hishousehold insurer and also via histravel insurer may never be detectedbecause there is no means of checkingor cross-referencing the data.

This does impede the investigation of asuspected fraudulent non-motor claim,for if it can be identified quickly that aclaimant is a ‘serial claimant’ or hasclaimed multiple times for the sameloss, investigations will inevitably leadto an early repudiation of the claim.Without this information the insurer isreliant upon disclosures made by theclaimant during the claims andlitigation process which increases costsand delays the investigation process.

There have been calls by severalinsurers for better lines ofcommunication between insurers andsimilar databases to the Motor InsurersAnti-fraud and Theft Register andClaims Underwriting Exchange to becompiled for non-motor claims.

In response the Insurance FraudBureau and the Association of BritishInsurers have designed a NationalInsurance Fraud Database which will inessence allow insurers to share data ofknown fraudsters and check aclaimant’s claims history across alllines of business. This is currently beingpiloted and is expected to ‘go live’ inearly 2012. With the correct DPAconsiderations and a high level ofsupport from all insurers writing alltypes of business, this should go someway to assist the industry in itscontinued fight against fraud.


Claire LaverPartner

How doinsurers beginto validatefraudulent non-motor claims?

‘Right-touch regulation’: turmoil inhealthcare

The concept of right-touch regulationhas been developed by CHRE (Councilfor Healthcare Regulatory Excellence),the independent body accountable toParliament for scrutinising andoverseeing the work of the nineregulatory bodies. These bodies includethe GMC, GDC, NMC and HPC whoset the standards for the performance,training and conduct of healthcareprofessionals. Development of theconcept of right-touch regulation hasevolved out of a tension within thehealthcare arena between concernsover regulation ‘red tape’ and under-regulation (the Shipman effect). CHREdefines the concept as ‘the minimumregulatory force required to achieve thedesired result’, its aim being ‘to ensureregulation is effective, appropriate andproportionate’.

Right-touch regulation proposes a moreefficient regulation or ‘smart regulation’of healthcare professionals. If there isno risk, do not regulate. If the problemcan be solved locally, do not regulatebut use targeted local approaches. Allof these concepts aim to create a moreproportionate, economically viable andless interventionist form of control overhealthcare professions.

This sounds promising, but are thesechanges achievable? How will CHREbring about this new world ofregulation? At the current time, CHREproposals are merely ideas thrown intothe forum for debate and the onlymechanism for imposing significantregulatory change is by statute.

Are regulators getting it right?

There remains a huge range of varyingapproaches among the regulators, withsome being more cautious in referringa single clinical incident complaint to afull hearing, while others frequently

refer complaints to a public hearingwhere the incident is minor, there is nosignificant current risk to patients andoften, in BLM’s experience, havinginadequate evidence to support thecomplaint being prosecuted. The resultis that no sanction is imposed. Thiscauses the significant stress of ahearing for both the complainant andthe healthcare professional and leavesnobody a winner.

Against these observations, however, itmust be recognised that there arerelatively few appeals from paneldecisions which might suggest that the‘right outcome’ is being achieved incases where hearings proceed. A moreaccurate deduction could be that thejudiciary are reluctant to interfere withthe decisions of experienced panellistswho have sat through weeks of oralevidence, and as a result registrants areadvised not to launch a challenge.


Right-touchregulationproposes

‘smartregulation’

GMC – GeneralMedical CouncilGDC – GeneralDental Council

NMC – TheNursing and

MidwiferyCouncil

HPC – HealthProfessions

Council

What is the right level of regulation?

Whatever the regulatory system,whether it be for bankers, politicians orthose involved in the ‘caring’professions, the pressure for changeover the last 12 months has beenhuge. The question for those in

healthcare, where the stakes could notbe higher, is: are the changes going todeliver a more effective system than thecurrent system?

Doubts must be expressed when one ofthe key drivers for change in thehealthcare sector is the need to savemoney. The Secretary of State forHealth confirmed as much in his paper,‘Enabling Excellence’, in February2011, in which the cost of healthcareregulation (plus social workers) for2010 was reported as £200 million.

Is consensual disposal part of theanswer?

Up until December 2010 the futurelandscape for doctors and opticiansappeared to lie together with OHPA(Office of the Health ProfessionsAdjudicator), but the coalition threwthis organisation onto the ‘quangobonfire’. The CHRE is now trying to

apply a sticky plaster to the gapingwound that is left and the GMC isconsulting on consensual disposal.

Consensual disposal, ie, concluding acase without a hearing, has becomefashionable in the context of ahealthcare regulatory system which isnow centred on current fitness topractise and provides the added bonusof saving hearing costs. The GMCconsulted on the expansion of thisconcept earlier in 2011 and whilstfeedback was broadly positive, thescope for rapid implementation andadoption across the range ofregulators for those in healthcare islimited.

To return to the question do healthcareregulators have the ‘right touch’? Thecurrent answer is: it varies hugely,depending on the regulator. Right-touch regulation proposals aim toaddress this by creating a more unifiedapproach. The main thrust, withobvious economic motivation, is thatregulators should only intervene wherenecessary: ‘Remedies should beappropriate to the risk posed and costsidentified and minimised’. Time willreveal how the Medical PractitionersTribunal Service performs theadjudication function at the GMC andif this model is adopted across theboard. The economic realities,however, suggest that a uniformhealthcare regulatory system withappropriate flexibility and sensitivity isstill a distant speck on the horizon.


Janet McWhinney Partner

and Victoria SwantonPartner

Are changesgoing to delivera moreeffectivesystem?

Litigants-in-person: thepracticalities

Litigants-in-person is a hot topic,with the Civil Justice Council

working party soon to submit itsreport on the subject to the justicesecretary. The economic climate hasled to a sharp rise in the number oflitigants-in-person, which looks setto increase when the government’sproposed cuts to civil legal aidcome into effect. The PersonalSupport Unit (PSU) is a voluntaryorganisation whose members work incourts to provide support to litigants-in-person. New figures from the PSUdemonstrate the rise in numbers, forexample:

n A 19% increase in cases it supportedin the Family Division of the High Courtin the eight months to 31 August 2011

compared with 2010.n Cases at the RCJ rose 47% in2010.nCases in Manchester Civil JusticeCentre were up 89% from 2010 in

the four months to 30 September2011.

Whether due to concerns regarding funding a legalclaim or difficulties in locating solicitors willing totake on the case (perhaps more so with Legal Aidreforms and the Jackson report on costs),defendants often encounter claims being broughtby litigants-in-person. Such claims can be difficultto deal with and it is often the most spurious claimsthat are brought by litigants-in-person. However,dealing with such a claim is not always a negativething for the defendant’s side and, if the claim hasmerit, can lend itself to an early settlement withsubstantially less legal costs being incurred.

Early considerations

The starting point is to establish what allegationsare being made. By virtue of the nature of theclaimant, most will not have received legal adviceand will have drafted the particulars of the claimthemselves. It is not unusual to encounter reams ofirrelevant information which must be filtered to

determine the allegations.

If the allegations are entirely unclear, an earlyapplication for further information or even strikeout/summary judgment may be warranted.However, it is important to remember that the courtwill give the claimant some leeway and, if theallegations are capable of being extracted from theparticulars of the claim, such applications areunlikely to be successful.

Use of the court and the Civil Procedure Rules

Effective use of the court and the CPR can beammunition for the defendant in defence of aspurious claim. If there are failings in theproceedings, for example, non-compliance with theCPR in relation to service, contents of proceedingsand supporting documents, bringing a courtapplication can be an effective tool to both forcethe claimant to bring the claim properly andreiterate the gravity of proceeding with the claim. Itcan be helpful to make applications to court forstringent time frames for serving the correctdocuments and, if the court orders are notcomplied with, ultimately strike out.

If there is an opportunity to have the claim broughtbefore the judge at an early juncture, the hearingcan be used to explain the potential costsconsequences of losing a civil claim. The claimantis more likely to be receptive to that warning ratherthan the explanation coming from the defendantcamp. In the author’s experience, it is not unusualfor a litigant-in-person to offer to discontinuefollowing such a warning from the judge.

When making use of the court, it is important toalways be fair to litigants-in-person. The court willmake allowances for the fact that they are bringingthe claim without legal advice and will be acutelyaware of the potential costs consequences for them.The judge will therefore be receptive to a fairstance being taken by the defendant’srepresentatives. For example, advising the claimantto seek legal advice, explaining the requirements ofthem and, where appropriate, forwarding to themthe relevant parts of the CPR and allowing theclaimant time to comply with the CPR. Trying to get


a spurious claim struck out can be a long battlewith several hearings (often before the same judge)and therefore a fair stance taken by the defendantcan assist when it actually comes to the strike-outhearing.

Strike out/summary judgment

Applications for strike out can be an effective toolwhere the claimant has no cause of action orpersistently fails to comply with the CPR and courtorders. CPR Practice Direction 3 gives someindication of where particulars of a claim may fallwithin the Rule:

n No facts indicating what the claim is about.n Incoherent and make no sense.n Contain a coherent set of facts but facts which,

even if true, do not disclose any legallyrecognisable claim (for example, BLM recentlydealt with a claim in which the litigant-in-personmaintained that the defendant ‘wilfullyconcealed’ a medical consultation. The judgedetermined that, whilst the allegation wascoherent, the claimant would not recoverdamages even if it was made out).

Another tool which can be utilised in the sameapplication as that used for strike out is anapplication for summary judgment. CPR Part 24states that the court may give summary judgmentagainst the claimant on the whole of a claim or ona particular issue if it considers that the claimanthas no real prospect of succeeding and there is noother compelling reason why the case or issueshould be disposed of at a trial.

Be prepared for the fact that, even if successful witha strike out/summary judgment application, adefendant is highly unlikely to recover the legalcosts from a litigant-in-person. Before accepting theloss, consider other options such as payments ininstalments, charging orders and attachment ofearnings orders but be aware of increasing defencecosts for investigating such options which may befruitless.

Vexatious litigants

Vexatious litigants are a separate and more extremecategory than those bringing purely unmeritoriousclaims. The following options should be considered:

n The court may of its own volition strike out theaction as an abuse of process.

n Applying for a Civil Restraint Order (CRO) wheretwo or more unmeritorious claims/applicationshave been made by the same litigant. CROs last

for up to two years and preventthe subject from bringingfurther claims without obtainingleave from a designated judge.

n As a last resort, an applicationcan be made to the attorneygeneral for a Civil Proceedings Orderfor the litigant to be declared avexatious litigant (section 42 of theSenior Courts Act 1981). The orderrestricts the litigant from bringingfurther claims without leave from aHigh Court judge. The AttorneyGeneral is unlikely to interveneunless at least six unsuccessful/struck-out claims have been madeby the litigant.

The Attorney General’s list ofvexatious litigants is published on thejustice website. There are fewer than200 names on the list, which datesback to 1956, showing how difficultit is to have a litigant declaredvexatious.

Summary

Dealing with claims brought bylitigants-in-person can be difficult. Itis important to establish early onwhether the claim is unfounded and,if so, take steps to utilise the CPR toyour advantage to work towards anend goal of strike out/summaryjudgment. Conversely, if the claim hasmerit, it can be beneficial to attemptto negotiate settlement early on tolimit both damages and the potentialrecovery of legal costs such as court fees.

Berrymans Lace Mawer

Claire PritchardLawyer

Disclosure November 2011 17

Risk vResponsibility

In his foreword to Lord Young’s report in October2010, David Cameron identified what many of usall knew existed:

A damaging compensation culture has arisen, asif people can absolve themselves from anypersonal responsibility for their own actions …

In the 2011 Budget, George Osborne promisedimplementation of the recommendations made inLord Young’s report, a decision which was welcomedacross the insurance sector.

Whilst implementation will take time, the success ofthe move towards a common sense approach,under which the law requires individuals to take afair and realistic degree of responsibility for theiractions, will inevitably rely heavily upon theinterpretation of the law by the judiciary.

This very issue of exercising reasonable care andbeing responsible for one’s own health and safetyhas recently been considered by the court, which hasexpanded on the judicial commentary offered inTomlinson v Congleton Borough Council [2003]UKHL 47 and Trustees of the Portsmouth YouthActivities Committee v Poppleton [2008] EWCA Civ 646.

Grimes – a diving injury, like Tomlinson

In Kylie Grimes v David Hawkins & Anor [2011]EWHC 2004 (QB), the claimant, an 18-year-oldexperienced swimmer, who knew the risks associatedwith diving, sustained serious injuries that tragicallyrendered her tetraplegic as a result of diving into aswimming pool during a party at Mr Hawkins’ home.

The claimant was a lawful visitor and was permittedto use the pool, which included being able to diveinto it. The pool had been properly built, designedand maintained although there were no markingsaround the outside of the pool or signs prohibitingdiving. The claimant was never told not to dive orwarned of the risks associated with doing so.

She dived into an area in which she had previouslyswum, and so she should have been aware of howdeep it was but unfortunately hit the bottom of the

pool and immediately knew she had been hurt.

Statutory duty

Mr Hawkins had a duty:

To take such care as in all the circumstances ofthe case is reasonable to see that the visitor willbe reasonably safe in using the premises forwhich he is invited or permitted by the occupierto be there. (Section 2 of the Occupiers LiabilityAct 1957.)

In dismissing the claimant’s claim under the Act, MrsJustice Thirlwall could not ignore Lord Hoffman’scentral reasoning in Tomlinson, which was based on‘the freedom of an individual to exercise free will’.There were no hidden or unexpected dangers in thepool and the risk for the claimant was the riskinherent in diving, a risk which she herself hadacknowledged. Mr Hawkins:

Was not required to adopt a paternalisticapproach to his visitors, all of whom were adults,


all of whom were making choices about theirbehaviour, exercising their free will.

Common law duty

The common duty of care imposed by section 2 ofthe Act essentially mirrors the duty to takereasonable care imposed by the law of negligence.Considering this duty, Mrs Justice Thirlwall madespecific reference to Poppleton. In highlightingparagraph 17 of that judgment, May LJ, in referringto Lord Hoffman in Tomlinson, said:

Lord Hoffman said … that Mr Tomlinson was aperson of capacity … freely and voluntarilyundertaking an activity which inherently involvedsome risk … it would be extremely rare for anoccupier of land to be under a duty to preventpeople taking risks which are inherent in theactivities they freely choose to undertake … Thelandowner may take a paternalistic view … Butthe law does not require him to imposeconditions … a duty to protect against obviousrisk or self-inflicted harm exists only in cases in

which there are no genuine or informed choices.

Mrs Justice Thirlwall applied the reasoning in bothTomlinson and Poppleton. The claimant was an adultand was doing something which carried with it anobvious risk.

She chose, voluntarily, to dive when, how andwhere she did, knowing the risks involved, as sheacknowledged on the first day of trial … It wouldnot be fair, just or reasonable to impose a dutyon the defendant to put his pool out of bounds atnight, or to prohibit adults from diving into thepool.

Discussion

While each case will turn on its own facts, thedecision in Grimes, albeit one at first instance only,may be seen as a move away from the so-calledcompensation culture and emphasises the PrimeMinister’s comment above that adults should not‘absolve themselves from any personal responsibilityfor their own actions’ just because an accident hasoccurred.

The law will, however, continue to impose duties onoccupiers and landowners to assess risks and takereasonable steps to see that visitors will bereasonably safe using the premises for the purposesfor which he is invited or permitted. As Jackson LJcommented in Hufton v Somerset County Council[2011] EWCA Civ 789 – decided only a few weeksbefore Grimes – in reality:

It is not possible and the law does require theoccupier of premises to take measures whichwould absolutely prevent any accident from everoccurring. What is required both by the commonlaw and by section 2 of the Occupiers LiabilityAct 1957 is the exercise of reasonable care.

The definition of reasonableness may well have beentightened by this decision and will hopefully serve toadd weight to the fact that adults must accept that itis not always the case that someone else is to blamefor the decisions that they make.


Stuart GiddingsAssociate

All in a day’s workShould workplace duties apply to public liability claims? Who is protected whenaccidents do occur?

Employees enjoy the protection of theiremployer’s statutory duties whilst atwork. The European Directives(colloquially known as ‘The Six Pack’)provide extensive employee protectionrelating to place of work, work systemsand work equipment. Although there isauthority running each way on thepoint, it is by no means certain that aclaimant injured outside work enjoysthis statutory protection. That makespublic liability claims harder forclaimants to win.

Recent years have therefore seen agrowing trend of claimant’s lawyerstrying to argue that workplace dutiesshould apply to public liability claimswhere the accident site happens to bea workplace. The argument mostfrequently cited in support of this isschools. Ironically, for an accident atschool, the teachers enjoy greater

protection than the children because theteachers are at work and benefit fromthe regulations. The children do not.

The past 12 months have seen twoseparate attempts to force workplaceduties on public liability defendants.Fortunately both were rejected.

Brown v North Lanarkshire Council

[2010] CSOH 156

This is a Scottish case. The claimantwas ten at the time of his accident. Heand other pupils were engaged inpainting a very large picture at school.Because of the size of the artwork, thepicture was being created on the floor.The claimant was one of three pupilsengaged in this exercise using a long-handled paintbrush (essentially apointed stick with a brush at one end).He was bumped by one of his


Claimantlawyersargue

workplaceduties should

apply topublic liability

claims

classmates and fell forward onto thepointed brush, suffering a catastrophiceye and brain injury.

The case was pursued on a number ofgrounds, including a failure to riskassess. The claimant’s lawyers arguedthat there was a duty to make a riskassessment of these brushes on behalfof the employee teachers. Thedefendant’s failure to carry this out,they said, amounted to a breach ofduty in respect of the claimant, whowas not an employee. The courtrejected this creative argument. Failingto carry out a risk assessment for thebenefit of employees was not a breachof duty towards non-employees whomight be affected by this. So theregulations were not applicable for theclaimant’s benefit.

The claim was, however, successful onthe ordinary principles of negligencebecause this type of brush was aforeseeable hazard.

Kmiecic v Isaacs [2011] EWCA Civ 451

The same themes appear here. Theclaimant was injured whilst attemptingto repair the defendant’s roof.

The defendant had in fact engaged acompany, Armag Decorations, to carryout repair works. It sent an employee,the claimant. However, Armag did notprovide him with a ladder. He asked togo onto the roof through an upstairswindow of the defendant’s house. Sherefused. Accordingly he went to hergarage and found a short ladder. Heattempted to get onto the roof usingthis. Unfortunately, as the ladder wastoo short, he fell and was injured.

The case was pursued on two basesagainst the householder defendant.First, she was accused of breachingthe Working at Height Regulations byfailing to provide an adequate ladder.Second, she was accused of failing theclaimant with a safe system of work inaccordance with the WorkplaceRegulations. The householder was notthe claimant’s employer. He did notpursue his employer, Armag, as

(unusually) it did not have ELinsurance.

The Court of Appeal looked at thecircumstances. The regulations couldapply to a non-employer defendant ifthere was a sufficient degree of controlover what the claimant was doing.Here, however, the claimant was ahouseholder who had retained anostensibly reputable contractor to dealwith the roof. Whilst she would notallow access through her house, therewas no suggestion that she wascontrolling the claimant’s activities.Accordingly, the regulations did notapply. The claimant lost.

Conclusions

These cases are indicative of the pushby claimant lawyers to imposeWorkplace Regulations on publicliability defendants. Both attemptsfailed. However, it is important to noteit was the absence of control thatdefeated the claim in Kmiecic. Thisleaves the door open to public liabilityclaimants where there is a sufficientdegree of control – say, for example,subcontractors on a multi-occupancybuilding site.

With this in mind, defendants must bealert to workplace duties pleaded inpublic liability claims.

For now, however, defendants shouldcontinue to argue that work dutiesrarely influence public liability claims.


Henry BerminghamPartner

Defendantsmust be alertto workplaceduties pleadedin public liabilityclaims

Riding the risk: animal matters

Reputed to be a nation of animallovers, it seems that love does notextend to animals which causedamage, even if their behaviourconforms to type for the species. That isperhaps understandable if there hasbeen negligence or if the personsustaining the damage did not chooseto associate with the animal inquestion, but what of those whovoluntarily put themselves close toanimals?

It has been commented many times,including by the higher courts, that thesection of the Animals Act 1971 whichimposes strict liability on keepers ofcommonly domesticated animals incertain circumstances is opaque. Thepurpose of this article is not to explorethe tautologous wording of s2(2) of thatAct, rather it focuses on cases wheredamage was caused by animalbehaviour likely to be caught by the Act.

When considering the interpretation ofthe Act in the much reported case ofMirvahedy v Henley [2003] UKHL 16,Lord Nicholls reasoned that horses’keepers:

‘… could decide whether to run theunavoidable risks involved inkeeping horses [and] they coulddecide whether or not to insureagainst those risks’.

Clearly an important policyconsideration in his judgment.

However, that is not the end of thestory. By virtue of section 5(2) of theAct, the keeper will not be liable if therisk of damage was voluntarilyaccepted. Where then is the linedrawn? Animals are part of everydaylife in this country. What constitutesacceptance of risk that they may causedamage?

Inevitably, the approach the courts takein a particular case is fact sensitive.However, as in other areas of publicliability law, courts are willing to find aclaimant has voluntarily accepted therisk when there is some evidence theclaimant was aware of the risk butchose to get close to the animal inquestion.

It would appear that a walker whodeviates from a footpath which skirtsthe edge of a field which contains aherd of cows with calves at foot, doesnot voluntarily accept the risk the cowsmight cause injury, despite being awarecows could be dangerous: McKaskie vCameron [2009] LTL 2/12/2009. Thatjudgment may be something of ananomaly, however, as His HonourJudge Howarth also found for theclaimant under the Occupiers LiabilityActs 1984, which was never pleaded,and 1957, which did not form part of


Whatconstitutesacceptance

of risk?

the claimant’s pleaded case until afterthe draft judgment had beencirculated. This flies in the face ofdecisions of the higher courts thatthose on public footpaths are notvisitors for the purposes of that Act.

More recently in Seyf v Richmond ParkRiding School, Central London CountyCourt, 5 May [2011] the claimant wasan intelligent, articulate, professionalwoman who signed a form acceptingriding is potentially dangerous andaccepted in oral evidence that sheknew of the risk she could fall and beinjured. She agreed to take part in twocanters in full knowledge of that risk.She was therefore found to havevoluntarily accepted the risk of injurywhen she lost her balance and fell offthe horse whilst cantering.

Even in circumstances where a horsewas known to have a tendency toexhibit the potentially dangerouscharacteristic of bucking whilstcantering, the Court of Appeal upheldthe first instance decision that aclaimant, who was made aware of thatrisk and experienced it herself,voluntarily accepted the risk of injurywhen she continued with the ride (seeFreeman v Higher Park Farm [2008]

EWCA Civ 1185).

Accordingly where an animal poses aparticular risk because it has a habit ofdisplaying a dangerous characteristicfrom time to time, provided that isspecifically drawn to the attention ofthe injured person (and of course in theabsence of negligence), that need notbe a bar to the defence succeeding.Likewise, where an animal poses noparticular risk over and above thatinherent in the species, the defence cansucceed without the need for theanimal’s keeper to specifically draw aperson’s attention to every potentialmisdemeanour.

Another 2011 judgment reinforces thismessage. A passenger in a horse andtrap who was an experiencedhorsewoman, albeit a relative novice atbeing in a trap, and was aware of thegeneral risk of horses behavingunpredictably, was held to havevoluntarily accepted the risk the horsemight shoot forwards away from aperceived threat causing the trap to tipand had therefore accepted the riskwhich materialised even where therewas no evidence it had beenspecifically drawn to her attention:Bodey v Hall [2011] EWHC 2162(QB).

It seems then that whilst the policyconsiderations referred to by LordNicholls in Mirvahedy might often leadan injured claimant to believe theyhave a strong case, the other side ofthat same coin is that it is not justkeepers of animals who decide whetheror not to run risks associated with thoseanimals. Unless the risk was incidentalto employment, there is judicial supportfor the contention that claimantsthemselves, particularly those involvedin leisure pursuits, decide whether torun the unavoidable risks involved inbeing around animals.


Louise AbbottPartner

Claimants ...decide whetherto run theunavoidablerisks

A bumpy ride ahead?Local authorities and risk-taking contractors take note

The recent High Court decision in Thomas vWarwickshire County Council [2011] EWHC 772(QB) comes at the worst possible time for cash-strapped local authorities. With the governmentannouncing plans to freeze council tax and a 15%reduction in the road repair budget, the decisionwill inevitably lead to local authorities reclassifyingand tightening their inspection criteria for roaddefects, placing further strain on already stretchedcivic budgets.

Facts

Mr Thomas, an experienced cyclist, sustained a

serious head injury when he fell from his bike duringa group ride. The evidence accepted at trial wasthat a spillage of concrete deposited up to 12months earlier had hardened and formed a ridge inthe middle of the carriageway measuring 1 metre inlength, 10cm wide and 25mm in height. MrThomas was travelling at 25mph, riding two abreastwith 20 other cyclists, just 15cm from the rear wheelof his fellow rider when he struck the ridge.

There were no records of previous accidents on theroad and it was conceded that the council’sinspectors would have seen the ridge during theirroutine inspections. The Highways Authority


information manager gave evidence that despite itsheight, the deposit was most likely not reported dueto its position in the centre of the highway, awayfrom normal tyre tracks.

Extent of maintenance obligations

The material question at trial was whether theconcrete had become part of the fabric of the roadand therefore within the council’s maintenanceobligations under section 41 of the Highways Act1980, and, if so, whether it represented areasonably foreseeable danger to traffic using theroad.

It is settled law that obstructions or surface-lyingmaterial do not constitute a part of the fabric andare not within the maintenance responsibilities ofcouncils. However, in finding for the claimant thecourt held that:

1 The spillage had become a permanent fixtureand was therefore part of the fabric of the road.

2 Despite the council’s contention that cyclists areassumed to ride on the nearside of a road, andtherefore the ridge did not constitute a danger, itwas reasonable to assume cyclists would ridetwo or even three abreast and indeedreasonably foreseeable a cyclist in thesecircumstances would suffer an injury.

This decision clearly applies to all forms of two-wheeled travel, and motorbike riders will certainlytake note, although it is significant that the claimantwas held to be 60% contributory negligent due tothe fact he was riding so closely behind the bike in front.

Systems of inspection and repair

Thomas further defines and extends what mayconstitute the surface of the highway. Local councils’existing policies are now in the spotlight, andquestions must be asked about whether theycontinue to constitute a reasonable system ofinspection and repair, allowing them to benefit fromthe statutory defence under section 58 of theHighways Act. Highways inspectors must now notonly identify potholes and cracks, but should alsobe on the lookout for spillages or deposits that maybecome permanent by bonding to holes andphysical defects.

The Highways Agency estimates that £900 millionwas spent on public roads in 2010 alone; however,notwithstanding the economic arguments, Wilkie Jheld this was not a case where the balance between

the public and private interest was tipped unduly infavour of the individual, noting Lord Steyn’scomments in Mills v Barnsley NBC [1992] PIQRP291:

It is important that our tort law should notimpose unreasonably high standards otherwisescarce resources would be diverted fromsituations where maintenance and repair of thehighways is more urgently needed.

Broader implications

The cause of the concrete spillage was never found,but the most likely explanation was accepted as aspillage from a mobile concrete mixer. If thecompany responsible for the spillage had beenidentified, then the council would certainly haveconsidered joining them into proceedings as a co-defendant. Contractors, particularly those workingwith substances capable of bonding to roads, willtherefore need to take extra precautions to guardagainst spillages as the incentives for councils toinvestigate such spillages increase.

This decision will represent unwelcome news tosmall contractors in particular, coming shortly afterthe Health and Safety Executive’s constructiondivision has announced a change in focus to tacklewhat it calls a ‘two-tier industry’, with smallercontractors being responsible for a disproportionatelevel of accidents. Visits to sites solely controlled bylarger contractors are being scaled down, with atargeted approach to improve the safety record ofsmaller businesses being made. This could stretchas far as analysing how materials are transported toand from sites and whether that process poses risksto the public.

The decision in Thomas will ultimately lead to agreater financial burden upon local authorities.Whether in light of recent budgetary cuts Thomasachieves the sensible balance advocated by LordJustice Steyn in Mills, remains to be seen.


Matthew PerkinsLawyer

It is well known that the present government hastargeted the budget for the Health and SafetyExecutive (HSE) and the legislation it enforces, andsome believe this has led to the surprising increasein workplace fatalities.

Statistics from the HSE’s annual review of reportableaccidents confirms 171 people were killed at workduring the period April 2010 to March 2011. This is an increase from the previous year’s record low of 147.

Unsurprisingly, construction remains the largestcontributor with 50 reported deaths (41 in 2010).Added to agriculture’s 34 fatalities, these industriesaccount for nearly half of fatalities at work. However,the strategy to be adopted for the coming yearsmeans fatal figures may continue to rise.

The strategy includes an 11,000 reduction inproactive inspections and 350 job losses. This is inaddition to the alleged watering down of health andsafety legislation, closure of the HSE’s ‘info-line’ anda relaxation of the laws relating to the Reporting ofInjuries, Diseases and Dangerous OccurrencesRegulations 1995 (RIDDOR).

Is it not therefore inevitable that standards will slip ifcompanies know their premises will not be subject tostringent checks? George Guy, of construction union UCATT, seems to think so and has said:

The Conservative-led government’s financialattacks on the HSE will make workplaces moredangerous and will lead to increased deaths andinjuries of workers in the future.

Traditionally in times of recession there is a drop inaccidents and fatalities because fewer people areworking. This unexpected increase, in a time wheneconomic output has remained stagnant for 12months, has led to concerns.

The figures are perhaps evidence of a shift incommercial priorities due to the economic downturnand could indicate a change in the concentration ofefforts from health and safety to commercialsurvival.

There is no doubt that in place of weakening theexisting laws more input and vigilance is required.The HSE, unions and other interested parties will beclosely monitoring the position ahead of next year’sprovisional figures which will surely provide a clearerinsight into the trend of workplace deaths in the UK,and may give ammunition to those already up inarms about the way the UK health and safety recordappears to be doing a U-turn.


Less red tape, more red blood?

Atiyah MalikPartner


Atiyah MalikPartner

Update on agency workers: thenew regulations amended

The April 2011 edition ofDisclosure looked at theAgency WorkersRegulations 2010 andhow they give legislativeeffect to harmonising thetreatment of agencyworkers and permanentworkers. The right, after12 weeks on the sameassignment, is to equal

treatment with permanent workers in relation tobasic terms and conditions, which include pay,benefits, rest periods and holidays.

Drafting errors found in the Regulations led to theAgency Workers (Amendment) Regulations 2011being passed. The Regulations collectively came intoforce on 1 October 2011, and the next 12 monthsshould reveal the effect they will have on business.

The amendments made are as follows:

Definition of an Agency Worker

The confusion caused by the original definition of an‘agency worker’ has now been rectified. The draftingof the original regulations were interpreted bycommentators as requiring that an individual whoseeks to be classed as an agency worker mustactually perform work for the agency as opposed tothe end-user. This was clearly wrong.

Regulation 3 now clarifies that this contract can be acontract of employment with the agency or ‘anyother contract with the agency to perform work orservices personally’. This can therefore now also bea contract of employment with an end-user, whichwas always the intention of the original regulations.

Pay between assignments

Regulation 10 disapplies an agency worker’s right toequal pay between assignments, where they areemployed under a permanent contract ofemployment (by the agency or end-user) that is paidbetween assignments. The amendment to thisregulation sets out how the contract should beperformed during periods when the worker is not

working so that the regulations only apply after theend of the first assignment.

Liability where rights not provided

The defence to Employment Tribunal claimsavailable to agencies where an agency workerpursues a claim for breach of the equal treatmentprinciple under Regulation 14 has been amended toapply where agencies have taken ‘reasonable steps’to obtain relevant information from the end-userabout its basic terms and conditions of permanentemployees, and the agency has treated the workeraccording to this information. The information theagency now needs to obtain is only such that isrequired to comply with the equal treatment set outin Regulation 5, and nothing further than this.

Further amendments

Rumours that the government is already looking todilute the rights of agency workers have beendenied, with the Minister for Employment Relations,Edward Davey, advising the Commons that thegovernment’s absolute priority is to maintain the 12-week qualifying period. The regulations, ascorrected, represent a potential source of friction forthe coalition. Right wing thinking tends to view thistype of regulation as detrimental with the impact onthe economy of the anticipated additional costs ofemploying agency workers.

It will always be difficult to judge the impact of theregulations with low growth in the economy maskingthe decision-making of employers/end-users. In themeantime, businesses are referred to the guidanceproduced via the Department for BusinessInnovation and Skills to assist in implementing thechanges and understanding their legal obligations.

Laura Newcombe

Associate

The perils of public inquiriesDevelopments, risks and best practice

What generally follows events of public concern –whether phone hacking, riots or perceived failings bysocial services, police or healthcare professionals?T he immediate reaction is often to call an inquiry.The popularity of the inquiry process lies in itsadaptability – commissioning a distinguished figureto investigate, establish the truth and providerecommendations may enable society to addressthose public concerns. A more cynical observerwould suggest an inquiry will divert attention orenable a whitewash.

Whatever the catalyst, the inquiry process triggers ahost of challenges for lawyers and insurers moreused to adversarial litigation. Those charged withprotecting the interests and reputations oforganisations involved directly or indirectly need toconsider the hazards posed by relatively informalevidence gathering, and the process of publishingfindings and recommendations. Similarly, insurersmust be alive to potential risks. This article considersrecent developments, some of the challenges andhow best to deal with them.

Types of inquiry

Inquiries vary widely. Any organisation or person cancall an inquiry although in practice some may besubject to specific industry or sector requirementswhile statutory inquiries are governed by the PublicInquiries Act 2005. Until the enactment of the Actinquiries were largely ad hoc and non-statutory,principally because the old statutory procedure wasconsidered to cause unnecessary delay and expense.Non-statutory inquiries are still common – by June2010 only 13 public inquiries had been establishedpursuant to the 2005 Act. These inquiries includethe Mid-Staffordshire NHS Foundation Trust Inquiry(which followed a non-statutory inquiry), while morerecently the Leveson Inquiry has been establishedunder the Act.

The impact of the 2005 Act was to consolidatevarious instruments and provide a set of principleswith rules and powers to make them workable,largely set out in the Inquiry Rules 2005. Theseinclude powers to compel evidence or hold hearingsin private, as well as funding, often one of thecriticisms of any delayed and expensive inquiry

process. The Bloody Sunday Inquiry, established in1998 and reporting in 2010, is said to have costover £155 million, of which legal costs were £67million.

An inquiry’s terms of reference will fix the ambit ofevidence and the issues to be addressed. Thoseterms of reference may be detailed or brief,depending upon the nature of the issue(s) to beinvestigated and determined. Those involved shouldpay careful attention to the terms both at thebeginning of the inquiry when considering theindividuals and departments to be involved, the levelof work and the evidence to be submitted, and alsothroughout the course of the inquiry to remainsatisfied that the inquiry is acting subject to thoseterms of reference and not wandering beyond itsintended remit.

Why use the inquiry process?

One key reason for using the inquiry process is thatthe procedure can be adapted to suit the subjectmatter and issues to be determined. The chair orpanel should decide on the evidence-gatheringprocess to be adopted – the inquiry protocol – in order to best uncover the truth about thecircumstances of an event. There is considerablelatitude in creating timetables for evidence to becollected, witnesses to be interviewed and responsesto be prepared.

While certain procedures may be required under the2005 Act, and the option of judicial review is alwaysavailable as a last resort, participants will be keen tobe seen to support the objectives of the inquiry (inmost cases). So creating a working relationship withthe inquiry panel, the secretary to the inquiry and thelawyers acting for the inquiry team may be critical tothe successful handling of an inquiry. An atmosphereof co-operation is expected and appropriate whereissues of public concern are to be resolved; knowingwhen to stand firm on a procedural point may becritical to an effective response.

Disclosure of information

It is inevitable that the subject matter of an inquirymay touch upon highly confidential and sensitive


information.Therefore the

process ofdisclosure of

evidence must behandled with great

care to ensure anindividual’s rights are

protected and anorganisation

is notexposedto

potentialclaims for

breach of confidence.Disclosure of evidence may appear disconcertinglyinformal – advisers may need to gain assurances asto privilege or publication on inquiry websites.

The 2005 Act has introduced statutory powers tocompel witnesses to attend while non-statutoryinquiries will depend heavily upon co-operation. Anorganisation may find that the evidence of witnessesor documents considered particularly relevant to aninquiry and its objectives is not considered importantby the inquiry team despite the terms of reference.So the marshalling of evidence gathering andpresentation is a critical part of the role of theadvisers instructed to protect the interests of anindividual or organisation.

It is crucial to note that the purpose of an inquiry isto uncover the truth – it is not to determine issues of civil or criminal liability. Under section 2 of the2005 Act:

An inquiry panel is not to rule on, and has nopower to determine, any person’s civil … liability.

Where an inquiry is considering the responsibilitiesand actions of public sector professionals, it isinevitable that criticism follows which may beconsidered relevant to any subsequent (or existing)liability claim. In addition to considering thepotential consequences for liability, any adviser mustalso be wary of the professional disciplinary issuesand how the gathering evidence may impact uponan individual’s reputation.

Publication of the inquiry report raises a range ofissues for the individuals and organisations whichmay be the subject of criticism, but also for theinquiry team and the organisation which

commissioned the inquiry. There may be issues ofdefamation and the disclosure of confidential orsensitive information which could expose thoseinvolved in the inquiry to risk or legal action. Whilelegal advisers to the inquiry team should haveconsidered all potential areas of concern, a draftinquiry report is normally also provided to coreparticipants hours before publication. Carefulconsideration should be given to the presentation ofevidence and recommendations and what ancillaryinformation may have been disclosed withoutadequate attention to legal or security implications.

The role of lawyers involved in an inquiry, whetherinstructed on behalf of the inquiry team itself orrepresenting one of the organisations or individualsinvolved, is to protect their clients’ interests andensure the fairness of the procedure. Lawyers areoften less than welcome because of the cost of theirinvolvement but also because they may be perceivedto cause unnecessary delay and impediment to theachievement of the inquiry’s objectives and its focusupon providing answers and recommendations forthe public.

Lawyers cannot expect the level of involvement theywould enjoy in adversarial litigation and mustcarefully gauge the best means of achieving theirclients’ objectives within the context of the inquiryprocess. An unnecessarily legalistic approach will beunwelcome and is likely to antagonise the inquirypanel while a decision to pursue a remedy such asjudicial review, taken in a fast-moving and evolvinginquiry process, may ill-serve a client where the mainfocus of the inquiry is fairness, truth andtransparency.

Summary

Public inquiries represent a range of challengingrisks, and full co-operation with all parties,potentially including insurers, must be part of theprocess. While civil liability may be specificallyexcluded from the inquiry’s terms of reference, theoutcome will inevitably be relevant to consideringaccountability, blame and retribution. The key is toadopt a flexible approach and accept thatconventional litigation strategies are unlikely to work within the inquiry process.


Jim Sherwood Partner

Jim Sherwood acted for theCommissioner of Police for theMetropolis in the Morris Inquiry.

Who’s thewinner?

Where the court is called upon to adjudicatebetween parties, the successful party will usuallyrecover its costs from the unsuccessful party, ie, the‘loser’ pays. So how do you identify the winner? It isnot always easy.

There is a long list of cases on the topic of whichparty ‘won’ for the purposes of determining theappropriate costs order. A recent entry in that list isthe case of Medway PCT & another v Marcus[2011] EWCA Civ 750.

The case

The claimant was 31 when he began experiencingsymptoms of lower limb ischaemia. He wasassessed by GPs on several occasions but no urgentreferral was made. By the time he was seen by thevascular surgeons some weeks later, he required abelow-knee amputation.

The trial

The claimant alleged negligence for failure to referhim urgently to the vascular surgeons. It wasspecifically alleged that with timely referral andtreatment the limb would have been saved.

Both defendants admitted breach of duty butcontended that even with timely referral the limbwould not have been saved. The value of the claimwas agreed at £525,000 subject to liability, and thetrial proceeded on the single issue of whether or notthe claimant had actually suffered any injury as aresult of the admitted negligence.

The trial judge heard expert evidence from threeconsultant vascular surgeons and a consultantvascular radiologist. He accepted the defendants’vascular expert evidence and found that the limbwas unsalvageable from the outset. Accordingly, theclaimant’s main case failed. He was not entitled torecover damages for the loss of a limb.

However, an alternative case had been advancedlate in the day by the claimant’s counsel. It wasargued that the claimant suffered a short period ofunnecessary pain during the delay in diagnosis andshould therefore be entitled to damages for that

period. He was awarded damages of £2,000 toreflect additional pain and suffering over a periodof 28 days’ delay in treatment. This amounted toless than 1% of the sum claimed.

So who won? According to the trial judge, theclaimant had. He had come to court to recoverdamages for a wrong and had succeeded in doingso. The defendants were writing the cheque, albeit asmall one, having maintained a denial of liabilityand having failed to make any settlement offers.Therefore, the ‘losing’ defendants should pay coststo the ‘winning’ claimant.

The judge ordered the defendants to pay 50% ofthe claimant’s costs, which in total were estimatedat over £400,000. Even the 50% awarded wouldtherefore have been more than 100 times thedamages award. The defendants appealed the costs order.

The appeal

The appeal was heard by three lord justices,including Lord Justice Jackson. Each partycontended that they were the successful party attrial. The claimant relied on having obtainedjudgment and an award of damages, pointing outthe absence of any Part 36 offers from thedefendants. The defendants argued that the claimhad failed. The claimant received a tiny proportionof the sum claimed, on the basis of a last-minutesubmission.

This was upheld, with Jackson LJ dissenting. Theclaim was about the requirement for amputation.Damages of £2,000 were insignificant in thiscontext. The point on which the claimant succeededwas in truth a last-minute addition to salvage anaction that the claimant had lost. The failure to


make any Part 36 offers was of no consequenceand a technical triviality.

The appeal was allowed. The costs order wassubstituted for an order that the claimant pay 75%of the defendants’ costs. The 25% deductionreflected the fact that the claimant succeeded to avery small extent and one defendant did not admitbreach of duty until at a very late stage. It wasspecifically noted that no deduction was made forthe absence of any Part 36 offers. It was of courseopen to either side to make an offer and not just thedefendants.

Who won?

Both the trial judge and the Court of Appeal (CA)were at pains to point out that their judgments wereof scant consolation to the claimant, who hadsuffered the loss of his leg. The costs incurred onboth sides in securing the claimant’s £2,000damages award were very significant.

The CA took a pragmatic view of the litigation andrecognised that the last-minute change of tack bythe claimant did not result in a ‘win’ and was simplya last-ditch attempt to salvage a losing case. In theabsence of a protective offer, a party who ends upwriting the damages cheque will usually bear thecosts of the litigation. However, the court has a widediscretion and in the circumstances of the presentcase, that discretion would be exercised in favour ofthe defendants, who were the ‘winners’.

Implications for Part 36 and Calderbank offers

Marcus is just one of a number of recent decisionsthat have thrown open the debate over fairnessversus certainty in this area. Amongst the issues toconsider are:

n what happens when an offer is beaten by asmall amount?

n what happens if an offer is incorrectly worded?n do Part 36 offers override other rules?

Parties are understandably nervous about makingPart 36 offers, and some judges appear to haveendorsed the return of Calderbank offers as a wayof avoiding falling foul of the rules. This approachmay offer more scope for fairness, but potentially atthe expense of certainty and the desire for certaintyis something that Jackson LJ was keen to stress inMarcus, stating:

It was suggested in argument that thedefendants could have obtained costs protectionat an earlier stage by making a Calderbank offer… In my view such an offer would give thedefendants no effective protection. Unless thedefendants also offered to pay the claimant’scosts to date assessed on the standard basis [ie,a Part 36 offer in all but name], such an offerwould for all practical purposes be of no benefitto the claimant.

In other words, in order for the system to operate allparties need to know where they stand. If certainty isto prevail, the format of offers matters.

However, the court looked at the format of offersagain in Howell and others v Lees-Millais and others[2011] EWCA Civ 786 and found that where therewas doubt offers should be treated as Part 36compliant where possible, provided the parties hadtreated them as such. A victory for fairness overcertainty perhaps? The debate rumbles on.

Whatever new case law awaits, there will only be abrief period of calm if Lord Justice Jackson’s reformsare enacted in October 2012. This will bring awhole new round of challenges which will focus onthe financial impact of offers. Hopefully thecommon sense stance that the courts are leaningtowards will linger and the delicate balance of areasonable damages settlement and reasonablecosts protection can be achieved.


Greg McEwenPartner

Consumer law ‘MOT’ check

On 8 September 2011 theEuropean Commission publishedits fourth report on theapplication of the Directiveconcerning liability for defectiveproducts within member states. Itcovers the period 2006 to 2010.This article details how thingshave moved forward during thepast five years.

The Directive introduced the principleof liability without fault on the part ofthe producer who must compensate,irrespective of whether or not there isnegligence on the part of the producer.

The information collected showed thatsome member states, including Austria,France, Germany, Italy, Poland andSpain, recorded an increase in thenumber of product liability casesbrought under national laws. In somemember states, there was an increasein the absolute number of casesbrought both on the grounds of productliability and in the relevant use of theDirective against cases brought on thegrounds of civil or contractual liability.The report also notes the increase asbeing mainly due to external factorssuch as greater consumer awareness,better organisation of consumer groupsand improved means of accessinginformation. In contrast, the reportsuggests that costs of the actiondiscourage this type of proceedings incertain member states, notably the UK.

The report summarises the datacollected by the Commission withparticular reference to burden of proof,the defence of regulatory complianceand the development risk defence.

Burden of proof

The Directive provides that the burdenof proof for damage, the defect andcausal relationship between the two,lies with the injured party. The reportnotes that the purpose of the Directiveis not to harmonise Member States’national procedural rules, which varynot only as regards substantive law, butalso as to the standard of proofrequired.

It also notes that evidence needed toprove a defect in some EU courtsvaries widely. For example, in Belgium,France, Italy or Spain it is enough forthe claimant to prove that the productdoes not fulfil the function for which itwas intended. In other countries, suchas Germany or here in the UK, theclaimant must prove the precise natureof the product’s defect in more detail.

The cost of experts is a major barrier topursuing cases, and in order toovercome this problem and effectivelyreverse the costs burden, somemember states believe the Directiveshould be amended to include apresumption of the producer’s liabilityor a mechanism to reverse the burdenof proof.

This provision continues to be a bone of contention between therepresentatives of the interestedparties, be they consumers, producers,suppliers, insurers or legalpractitioners.

Producers and insurers believe that therequirement to prove the causal linkbetween the damage and the product’sdefect is fundamental to the balancebetween producer and consumerinterests guaranteed under theDirective. This group believes that


Data showedan increase

in thenumber of

productliability cases

relaxing the rules for the burden ofproof would simply encourageconsumers to take legal action evenfor minor damage.

Defence of regulatory compliance

The Directive establishes that theproducer shall not be liable if heproves that the defect is due tocompliance of the product withmandatory regulations issued by thepublic authorities. On the basis ofavailable information, the Commissionnotes that there is very little case lawon this ground of defence.

Development risk defence

The Directive provides that theproducer’s liability is not affected whenthe state of technical knowledge at thetime when it put the product intocirculation was not such as to enablethe defect to be discovered. TheCommission notes that national courtsdiffer as to whether this defenceapplies to all types of defects. Forexample, the German Supreme Courtruled that this article never applies tomanufacturing defects. Other courts,for example the Netherlands and theUK, disagree with this interpretation.

Conclusion

The Directive is not aimed at fullyharmonising all aspects of legislationon liability arising from defective

products in the EU.

The report notes that there does seemto have been an increase in thenumber of liability claims made on thebasis of the Directive and also that thenumber of out-of-court settlements forcompensation has further increased.The Commission observes that theDirective in their eyes is seen asachieving a balance betweenconsumer protection and theproducer’s interests. The Commissionfurther takes the view that thedifferences that may arise do notcreate trade barriers or distortcompetition in the EU.

Between now and the next report infive years’ time, the Commission saysthat it will follow any developmentlikely to affect the balance ‘in order toidentify the problems and findsolutions that are acceptable to themajority of stakeholders’. We will keepyou informed.


ChristopherCoughlinPartner

Achieving abalancebetweenconsumerprotection andthe producer’sinterests

Financial information or financial advice? A warning for banks and IFAs

It is every compliance officer’s worst nightmare. Thefinancial adviser says he was ‘only givinginformation’ to the claimant and not ‘giving advice’.Panic ensues – if the adviser did not view his input asadvice, he will almost certainly not have completedhis compliance. There will be no know-your-clientinformation on file. No letter explaining suitability.No risk warnings. That means there will be littlechance of defending the claim that the investmentwas mis-sold.

This was exactly the position in Adrian Rubenstein vHSBC Bank PLC [2011] EWHC 2304 (QB) when thebank’s representative believed he was not ‘givingadvice’ but merely supplying information about aparticular bond.

The case sends the warning to banks and IFAs thatdefence will only work in very clear-cut cases. Thecourt said it would look in detail at what specificqueries the customer raised and how the adviserresponded to them; and it would then look to seewhether the adviser’s response was accompanied byany comment or value judgment. If so, then the‘information given’ by the adviser would take on thecharacter of investment advice, with all the usuallegal and regulatory consequences.

The detail

The case concerned an investment of £1.25 millionin the AIG Premier Access Bond, which failed in2008, largely because of the US subprime crisis.The claimant had invested in the Bond afterspeaking to an IFA (independent financial adviser)within HSBC. The adviser clearly felt that he wasproviding information only, whereas the customerbelieved that he was getting advice.

It was held that the adviser had given advice – notjust information – and that that advice was negligentand a breach of statutory duty. However, the judgewent on to find that the loss was not caused by thenegligence but by the unforeseeable collapse ofLehman Brothers and the resulting ‘run’ on AIG. Itwas therefore too remote to be recoverable, and theclaimant was awarded only nominal damages.

The facts

In September 2005, Mr Rubenstein, a qualified andpractising solicitor, wanted to invest the £1.25million proceeds of his house sale in an investmentwith minimal risk to capital, instant access and ahigher return than was available in a usual depositaccount. He and his wife were going to rent a housefor a while but wanted to be able to buy quickly.

Mr Rubenstein approached HSBC and wasintroduced to a ‘whole of market’ adviser whoworked there. The adviser told Mr Rubenstein aboutthe AIG Premier Access Bond. Mr Rubenstein askedabout the risks, saying that he could not afford toaccept any risk to the principal amount. The advisersaid that HSBC viewed the investment as the sameas cash deposited in one of its accounts. Afterhearing that, Mr Rubenstein invested the entireamount in the Bond.

Following the collapse of Lehman Brothers in 2008withdrawals from the Bond were suspended andultimately Mr Rubenstein suffered a capital loss ofapproximately £180,000. He claimed redress fromHSBC calculated as if the adviser had been givingregulated advice – as set out in FSMA 2000 and theFSA’s Conduct of Business Rules (COB).

Decision on what amounts to ‘advice’

The judge heard evidence from Mr Rubenstein (andhis wife who had previously worked at a senior levelin an investment bank managing investment bonds)as to what had been said at the time of theinvestment. The judge’s decision was that the adviserhad indeed given advice – despite the bank’sprotestations that it had only given information andcompleted this transaction as ‘execution-only’.

In a crucial passage of the judgment, the judgeprovided this useful guidance:

... the key to the giving of advice is that theinformation is either accompanied by a commentor value judgment on the relevance of thatinformation to the client’s investment decision, oris itself the product of a process of selectioninvolving a value judgment so that the


information will tend to influence the decision ofthe recipient. In both these scenarios theinformation acquires the character of arecommendation.

It was decided that the advice provided by the IFAwas negligent as there were a number of breachesof the procedural requirements of COB. Forexample, the IFA had been wrong to say that theBond was as safe as a cash deposit. Neither had headequately discussed possible alternatives with MrRubenstein.

In reaching this decision the judge distinguished therecent line of cases (following JP Morgan Bank vSpringwell Navigation Corp [2008] EWHC 1186)which found that advice had not been given.However, the Rubenstein approach was followed bythe Commercial Court in the recent case of Zeid vCredit Suisse (UK) Limited [2011] EWHC 2422where it was held that advice ‘requires an element ofopinion on the part of the adviser’.

Decision on causation

In parallel with their ‘no advice was given’ defence,HSBC also argued that the loss suffered was notforeseeable at the time that the advice was given. Assuch it was not recoverable since it was not a loss‘within the contemplation of the parties’. Instead itwas a result of the extraordinary and unprecedentedfinancial turmoil and the collapse of LehmanBrothers.

According to the judge:

Since the autumn of 2008, we have becomeaccustomed to economic bombshells of a kindnot seen since the Great Depression. We arenow reconciled to the fact that a sovereign statewithin the Eurozone has defaulted. We have nowwitnessed the downgrading of the AAA creditrating of the United States. The suggestion thateither of these events was going to occur wouldhave been regarded as fanciful in September2005.

The judge accepted that the concept of a run onAIG was ‘so remote that no financial adviser wouldhave been required to point it out as posing a risk tocapital’. It was concluded that the loss was notcaused by any negligence on the part of the IFA inmaking the recommendation. The loss was notreasonably foreseeable by HSBC and was tooremote to be recoverable as damages for breach ofcontract or in tort.

Practical impact

So where does this lead? The first point to make isthat an appeal is pending, so the judgment may notstand unaltered. However, on the basis that it isunchanged on appeal, the messages would appearto be:

1 IFAs who do not intend their service to constitute‘advice’ need to make very sure that they do notgive any comment or value judgement on theproduct in question. This is most likely to arisewith IFAs within banks where ‘information only’situations most often arise. If they do, the fullforce of FSMA and COB will apply.

2 IFAs may well succeed with a defence that lossesin the financial turmoil of 2008 are notrecoverable because they were not reasonablyforeseeable.

For those IFAs buoyed by point 2 above, greatcaution is advised: first, the foreseeability defencewill likely apply only where a respected institutiondefaults – as here, AIG. There is only very limitedscope for it to apply more widely, for example, toshare price falls across a portfolio of investments(however sharp). Second, it will likely apply only toinvestment advice given before 2008/2009 – nowthat people have ‘become accustomed to economicbombshells’ of the sort discussed in this judgment, itwill be difficult for advisers to say advice being givennow should not take into account the possibility ofsuch dramatic events recurring.


Leonie SalterLawyerwith contribution fromChristopher FittonPartner

The root of the problemGA Berent v (1) Family Mosaic Housing (2) Islington LBC [2011] EWHC 1353 (TCC)

Tree root nuisance causing property subsidence

The court held that a local authority, or otherrelevant party, would only be liable for propertysubsidence damage caused by their tree(s) if theywere aware (or ought to have been aware) thatthere was a ‘real risk’ that their tree(s) would causedamage to the specific property in question. Thiscase potentially makes it more difficult for claimantsto establish that any damage was foreseeable, andtherefore for claimants to establish their claim ineither nuisance or negligence. It represents,potentially, a significant step in favour of localauthorities and other public landlords.

Summary of facts

The claimant, Mrs Berent, owned a residential flatin Islington (the property). The first defendant,Family Mosaic Housing (Mosaic), a housingassociation, owned a neighbouring property, withinwhich stood a London plane tree subject to a TPO(Tree Preservation Order) imposed by the seconddefendant, Islington LBC (Islington). Islington wasalso responsible for maintaining two plane trees infront of Mrs Berent’s property (the street trees). Theproperty was built on a layer of ‘made ground’,mainly clay, underlain by London clay.


‘London plane’ treesThe most common species plantedin London’s streets (capable ofwithstanding polluted air). Rootscan be extensive. Other species canbe capable of causing subsidencedamage also. The larger and olderthe tree, the further its roots arelikely to have spread.

The claim

The claimant alleged that the trees of bothdefendants had caused subsidence damage to theproperty. The major damage was complete byspring 2004.

There were substantial delays in notifying thedefendants that their trees were implicated. Islingtonwas not notified until April 2009. Both defendantsgave notice of their intention to remove the trees inFebruary 2011.

The following points emerge from the judgment.

Foreseeability

It is established law that neither negligence nornuisance are ‘strict liability’ offences: the damagemust have been ‘reasonably foreseeable’ by thedefendant.

Islington argued that damage to the claimant’sproperty was not foreseeable given its regularregime of tree maintenance. The question ofwhether a particular property subsided dependedupon many factors, including the depth of thefoundations, and other variables. It was not possibleto foresee that subsidence would occur to aparticular property.

Arboriculturalists for both parties agreed that it wasnot possible to predict which trees would causedamage to buildings. The only way to remove the risk of damage entirely would be to remove the trees.

The judge held that a responsible local authority insuch an area:

‘… could not reasonably contemplate thedesertification of such a neighbourhood bywholesale tree felling to avoid a possible risk ofdamage’.

Taking into account the delay in notifying Islington,he found that there was no basis for supposing thatIslington knew, or ought to have known, that therewas a ‘real risk’ that the trees would cause damageto the claimant’s property until March 2010. Failureto remove the trees by April 2010 amounted to abreach of duty.

As the defendant was not in breach of duty untilafter the major damage had occurred, it was notliable for the cost of repair, only for loss of amenityand gross inconvenience from April 2010 onwards– a relatively small sum.

Other points

On causation, the judge affirmed the test in Loftus–Brigham v London Borough of Ealing [2003] EWCACiv 1490, ie, that the trees need not be the solecause of damage but must be an ‘effective andsubstantial’ cause in order to establish liability.

On the duties owed by public landlords (as againstlocal authorities), he held that as ‘prudent publiclandlords’ Mosaic could be expected to have asimilar degree of arboricultural knowledge to alocal authority.

Its knowledge affected the extent of its duty tomaintain the relevant tree(s). He saw no reason todistinguish between it and the local authority so faras abatement and tree felling were concerned.

Comment

Previously the courts have effectively accepted that,if it was foreseeable that some buildings in a tree-lined street maintained by a local authority would ormight suffer subsidence damage, that would satisfythe foreseeabilty test required in both nuisance andnegligence.

This case is the first to recognise that, given that it isnot possible to predict which properties will suffersubsidence (if any), the damage to a particularproperty is not foreseeable unless the local authorityknew, or ought to have known, that there was a‘real risk’ of damage to the property in question. Inthis case, the local authority ought not to have beenaware of such a risk until after it was notified of thedamage, and provided with evidence of causation,by the claimant.

For claimants, this case emphasises the need tocontact the local authority (or other relevant party)as soon as damage is apparent, and to providereasonable evidence that the trees are responsible.Foreseeability for damage which occurs thereafter isunlikely to be an issue.

For local authorities, this case represents a welcomerecognition, in legal terms, of the importance ofstreet trees to the local environment.


Andrew PlunkettLawyer

Ogden Table update

The 7th edition of the Ogden Tableswas published on 10 October 2011which uses UK life-expectancy datafrom the Office of National Statisticsfrom 2008.

The more recent data show rises in lifeexpectancy when compared to the dataused in the 6th edition (2004); this hascaused an average increase of overhalf a point for whole life multipliers for both genders and across all ageranges.

There are also significant increases inpension multipliers. For example, for a40-year-old man with a loss of pensioncommencing at age 65 the increase isjust under 8.5%. For a woman with aloss of pension commencing at age 60,the increase at age 40 is just over5.5%.

A significant presentational change isthat the 5% spread of notional discountrates in the tables moves from 0% to5% to -2% to 3%; but this does not andcannot itself in any way affect thestatutory discount rate of 2.5%.

The underlying life-expectancy data areupdated on a two-yearly basis inautumn, and the Office of NationalStatistics will be publishing more up-to-date life expectancy data (from the2010 survey) later this year.

It is therefore arguable that the data inthe revised 7th edition will be renderedout of date fairly quickly. In light of thisand in light of other proposed changesto the legal and proceduralbackground to resolving serious bodilyinjury claims (such as the review intothe existing discount rate and thesuggestion that the explanatory notesrequire substantial redrafting), it is likelythat a further edition of the tables couldbe made available in perhaps 12 to 18 months.

The chairman of the Working Partyindicates this in his foreword to the 7thedition:

The intention of the Working Party isto accomplish this re-writing in thenext (eighth) edition, which will relyon the further updated mortalityprojections due to be produced bythe Office for National Statisticslater in 2011. It is hoped that theeighth edition will be available inautumn 2012.


Henry Kirkup

Partner

It is arguablethat the datain the revised

7th editionwill be

rendered outof date fairly

quickly

BLM ‘Store Wars’ CSR event raises£21,000 for Barnardo’s

Congratulations to all those whotook part in Store Wars on 1October 2011. Well done BLMLondon who raised the largestincrease for Barnardo’s. In total,the event raised almost £21,000by taking over seven of thecharity’s stores around thecountry.

BLM London had a brillianttime participating. It was greatopportunity to get to knowcolleagues from the office(and to meet Antony Costafrom Blue). Thanks inparticular to everyone whodonated stock, money, timeand ideas – their generosityhelped us to win thechallenge, but moreimportantly raise muchneeded funds for Barnardo’s.

Jo CooperLondon event coordinator

What is Store Wars?

Store Wars fundraising eventsoffer teams an opportunity to runa Barnardo’s shop for the day.The fun challenge is to competeto increase sales by as much aspossible on the day.

Barnardo’s is delighted thatBLM LLP chose to take on theStore Wars challenge. It’sfantastic to see that all teamspulled out all the stops tomake this a memorable event

across the country. With atremendous effort from theteams, enthusiasm andcelebrity support in four shopsa fantastic £21k was raisedfor Barnardo’s. The moneyraised really does help tomake a difference to some ofthe most disadvantagedchildren and young people inour local communities.

Allan McLarenDirector of Fundraising,

Barnardo’sThe challenge

Birmingham – a fashion carnival.Customers viewed fashionthrough the decades, hadfantastic items to purchase andenjoyed other great events.

Leeds – celebrity alert. Formerfootballer and Sky Sportscommentator Dean Windasshelped with events including araffle, face painting and a ‘sockmonster’ workshop. Barney thebear donated hugs.

Liverpool – celebrity alert.Celebrities from this year’s TheApprentice (Zoe Beresford, GlennWard and Gavin Winstanley)helped with children’s activities,competitions and more.

London – celebrity alert. Supportfrom Antony Costa from boy bandBlue signed autographs, t-shirtsand even customers’ purchases.There were live mannequins, face

painting, children’s activities andcompetitions.

Manchester – celebrity alert. BLMManchester took over two stores:one was themed ‘I LoveManchester’ (and was visited bythe stars from Coronation Street.The other was ‘Believe inChildren’ with a fairytale/wonderland theme. Both hadgreat activities throughout the day.

Southampton – a halloweenextravaganza. Activities includedface painting and other greatactivities and competitions.

Stockton-on-Tees – this store heldlots of activities including facepainting, ‘guess the name of thebear’ and ‘guess the number ofsweets in the jar’ competitions, araffle, tombola and lots more.

Christopher NewtonPartner and chair

of BLM’s CSR committee


BLM briefing

BLM’s risk-managementoffering recognisedat industry awards

BLM’s claims

defensibility product,

developed by the

firm’s corporate risks

team, has been shortlisted at this

year’s Risk Management Awards.

Our bespoke claims defensibility

audits and workshops, delivered to

over 30 organisations and in excess of

1,000 delegates, help to raise

awareness of the causes of claims so

businesses can fully understand the

part they play in minimising their

exposure to risk.

The winner of the Risk Management

Application of the Year award, for

which BLM has been shortlisted, will

be announced in November.

New appointments at BLM

Since Disclosure 17, April 2011, BLM

has appointed new partner Andrew

Cameron to the safety, health and

environment team in Manchester.

Andrew is an experienced health and

safety lawyer, has represented

interested parties in inquest

proceedings and has been regarded

in Chambers & Partners for his

handling of police disciplinary work.

The firm has also appointed Claire

Batchelor to the healthcare team in

Manchester. Claire has more than 24

years’ experience in clinical

negligence and has worked with the

National Health Service Litigation

Authority for NHS Trusts and regularly

advises clients on litigation and

general claims in the healthcare

sector.

BLM head of policy development

leads new CJC working party

BLM’s Alistair Kinley has been selected

to lead a new Civil Justice Council

working party responsible for

identifying practical solutions in costs

policy which were first examined by

Lord Justice Jackson.

Alistair was also this year appointed to

the partnership. Terry Renouf, BLM

national senior partner, said:

It is important to recognise and

reward those who are important

for the future of our business.

Alistair’s work has reinforced how

we help our clients engage on the

key policy issues in their sector.

Events – dates for your diary

BLM hosts a full programme of events

focusing on key issues facing clients.

As well as sector specific events, our

annual Claims review conferences

provide an overview of the key

decisions from the past year and

anticipate the challenges for 2012.

Dates are Manchester on 9

November and London on 16

November 2011.

Throughout the year we participate in

a variety of external events,

exhibitions, workshops and

conferences, including ABI motor

conference (22 Nov), Post Magazine

conferences, AIRMIC (11 to 13 June

2012) and Alarm (24 to 26 June

2012) to name but a few.

Visit www.blm-law.com/events for up

to date information on all 2012

dates. Natalie King

Business communicationsmanager


Client area – web launch

In September 2011 welaunched a new and exclusivesite which provides clients withaccess to a wide range ofpresentations and materialsfrom all our seminars, as wellas breaking news stories anda selection of publications,mini-handling guides, toolsand web links tailored tospecific interests.

Visit www.clients.blm-law.com to access the login page and ‘Register’.

We welcome your feedback and hope that this site will soon becomeone of your Favourites.

November 2011

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Birmingham63 Temple RowBirminghamB2 5LST 0121 643 8777F 0121 643 4909

LeedsPark Row House19–20 Park RowLeeds LS1 5JFT 0113 236 2002F 0113 244 2002

ManchesterKing’s House42 King Street WestManchester M3 2NUT 0161 236 2002 F 0161 832 7956

BristolBroad Quay HousePrince StreetBristol BS1 4DJT 0117 975 8649F 0117 905 8810

LiverpoolCastle Chambers43 Castle StreetLiverpool L2 9SUT 0151 236 2002F 0151 236 2585

Southampton2 Charlotte PlaceSouthampton SO14 0TBT 023 8023 6464F 023 8023 6117

Cardiff23 Neptune CourtVanguard WayCardiff CF24 5PJT 02920 447 667F 02920 489 041

LondonSalisbury HouseLondon WallLondon EC2M 5QNT 020 7638 2811F 020 7920 0361

Stockton-on-TeesInnovation House, Yarm RoadStockton-on-Tees TS18 3TNT 01642 661 630F 01642 661 631

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disclosure 18 - nov 11 18 1011… · andrew relton jim sherwood julian smart kathy széputi you...

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