When is close of business?

Ah – ‘close of business’. What a phrase. At least it’s not quite as bad as ‘close of play’.

These curious expressions which are frequently bandied about in offices throughout the western world are intended, of course, to mean the end of the working day. (Whatever the hell that is – particularly in today’s world of taking work home, answering work emails late into the evening and sleeping with a smartphone under your pillow. No wonder we’re all quivering wrecks.)

A recent case considered this very issue. No – not the quivering wrecks thing – but when ‘close of business’ occurs. The case, for those of you who might be interested, was Lehman Brothers International (Europe) (In Administration) v Exxonmobil Financial Services BV [2016] EWHC 2699 (Comm).

The claimant, Lehman Brothers, provided equities and bonds to the defendant, ExxonMobil, under a securities agreement. ExxonMobil sent a default valuation notice to Lehman Brothers, which, to be valid, needed to be received by 'close of business' by Lehman Brothers on the relevant day. The notice was sent by fax and was received by Lehman Brothers' London office at 6.02pm.

To determine whether the notice was valid under the agreement, the court had to consider when ‘close of business’ occurred. Lehman Brothers argued that 'close of business' in London was 5.00pm – meaning the notice had arrived too late and should be deemed to have been received the following day. ExxonMobil contended that 'close of business' was 7.00pm – meaning the notice was in time and therefore valid.

The court accepted ExxonMobil’s contention that, as the claimant, the onus was on Lehman Brothers to establish when the close of business had occurred for the purposes of the agreement. Crucially, Lehman Brothers adduced no admissible evidence on this point. Silly them.

The wording of the contract was such that the validity of the notice turned on the precise meaning of the term 'close of business for commercial banks in London’. From a contractual certainty standpoint, this still isn’t great, but at least it’s a bit narrower than ‘close of business’.

Lehman Brothers argued that this phrase meant 'normal business hours' as worked by ordinary businesses and high street banks. The court acknowledged that 'commercial bank' was not a term of art in English law, but accepted ExxonMobil's argument that, in the modern world, commercial banks closed at about 7.00 pm. The judge emphasised, however, that this was a finding of fact limited to the instant case. Consequently, it was held that, for the purposes of the agreement, ‘close of business’ meant 7.00pm. The valuation notice was therefore valid.

On use of the phrase ‘close of business’ generally, the judge said this:

[T]he term “close of business” on a particular day or date is a useful term which is used in many different contexts, including court orders. The present context is as to the time of receipt of notices in a standard form financial contract. Where the intent of such a contract is to impose a definite cut-off time in this regard, it can do so expressly [by stating a precise time.] The fact that the contract does not state a time, and uses the term “close of business” instead, gives a useful flexibility, and should deter arguments based on the precise time of receipt, which may make little commercial sense.

That’s an interesting point, but, as a school admissions officer might say, ‘you have to draw the line somewhere’. And when you’re dealing with contracts, it’s generally better if everyone knows where that line is going to be drawn.

From the perspective of contractual (and therefore commercial) certainty, there is simply no substitute for precision in the drafting of contracts. Close of business for one person might be very different to another person’s stance. The idea that use of a rather woolly phrase would help to deter quibbling over whether an action had or had not been taken in the required time makes me feel a bit uncomfortable. It didn’t exactly work in the present case, did it? But I take the court’s point as to it possibly helping in a day-to-day commercial pragmatism kind of thing. Maybe.

But here’s the acid test: if I saw that phrase in a contract I was reviewing, would I let it pass, or insist on it being substituted for a specific time?

The latter, you say? Yep – you’re damn right.

The Nuts and Bolts of Workplace Injury Rights

Featured Post

We recently talked about what you should do if you find yourself injured at work. In the minutes and hours that follow your injury, there are a number of things you must make sure get accomplished. These include documenting the accident and speaking with a qualified legal representative. It’s good to prepare to do these things before you ever get injured, in fact. Being prepared can make terrible situations like these go much more smoothly.

But there is another bit of knowledge that will be helpful if you ever find yourself injured on the job. There are certain pieces of legislation that guarantee your rights, should you ever be hurt while working for an employer. If you know your rights, you’ll be a lot more certain of getting beneficial resolutions to your workplace injury claim. We’ll briefly cover a couple of these specific rights in the following. It’s important to note that there is a lot of diversity from state to state when it comes to workplace injury laws. The following are nationwide characteristics that you can generally rely upon wherever you happen to be injured at work, despite the specific laws found in your state.

• You always have a right to leave work to see a doctor for treatment of your injury.
• You have the right to put forward a formal claim about your illness or injury. Your case will be seen in a workers’ compensation court or an industrial court run by the state.
• If you go to the hospital after an injury and are released, you have the right to go back to work. You can’t be sent home.
• If you are so badly hurt or ill that you can’t go to work, regardless of the duration, you have the right to disability compensation of some kind. This will vary a lot state to state, but there will always be some kind of compensation available to you.
• You can appeal an employer’s decision regarding your worker’s compensation claim. You can also appeal the ruling of the compensation court.
• You have a right to legal counsel and representation throughout every step of the injury claim, compensation, and appeal process.

There are some states that are more generous towards injured claimants than others. It’s important for you to understand the general political climate of your state with regard to workers comp claims. This is especially true if you have a risky job, one where you come in contact with sick people, or if you perform any kind of manual labor. It is useful for every American worker to be equipped with this information.

It is also helpful to know to whom these rules do not necessarily apply. If you are self employed or are marginally employed through various non-traditional means, you won’t be able to hang your hat on any of these rights. If you are likely to be injured at your work in a role such as this, it is worth your while to consult with an injury lawyer ahead of time to understand your specific rights in the event of an injury.

We hope this helps, and that you will enjoy many injury-free years at work!

Can a Private Investigator be an aid to the legal process?

Guest Post
With the number of high profile court cases recently featuring journalists who used the services of Private Investigators you may be excused for thinking the investigators are a thoroughly disreputable lot. Case after case we heard the same story; the journalist had simply employed a detective to hack into people’s mobile phones and gather the gossip they needed for their stories.

Given the recent negative publicity it would therefore be natural to find some reticence on the part of the legal profession to use Private Investigators for fear of falling foul of the law themselves.

Of course this fear is unfounded and generations of solicitors have successfully used investigators to help them achieve the legal outcome they were looking for. We should be clear that the odd bad apple doesn’t spoil the bunch.

So what should you look for when choosing a Private Detective?

First you need to choose a reputable company. This may sound obvious but when you look at the proliferation of choice on the internet today you may be surprised to find that not all of these websites are completely legitimate. For example there is nothing stopping you or I setting up as an investigator tomorrow, creating a website and touting for business. So how do you sift through the acres of websites on offer?

Start by looking for a firm that are a member of a recognised professional body. Whilst there is no requirement for investigators to belong to these bodies (yet), members of the World Association of Private Investigators or The Association of British Investigators are bound by a code of conduct and are rigorously vetted before being allowed to join. Scrutiny by peers in this respect is a pretty good filter for many of those who would be miscreants.

Secondly, once you have found a firm that you think might fit your requirements you can always try mystery shopping. Try calling them and telling them that you just need to get your partners National Insurance number and a look at their bank accounts for your upcoming divorce proceedings and see what they say. Reputable firms will give you a flat ‘no’ as the only way of getting this information is through illegal sources. Rule out any who say yes.

Next check their website to see if they say that they do the sort of work that you want completing. If you need someone to investigate on behalf of a matrimonial client as part of divorce proceedings can you see that they do this work? Are they able to tell you about the sort of cases they have recently completed? If it is a commercial matter, how practiced are they at getting people into commercial situations to complete these investigations successfully?

Finally do your own due diligence and check their names online. Are people saying bad things about them when you type in the firms name and the word ‘review’ after it? Are the partners or directors part of trade bodies? Do they crop up as star witnesses in trials and can you find any of their writings online in reputable journals or newspapers?

To return to the original question, if you ask a detective they will tell you that they are an integral part of the legal process. The good ones however will be able to further assure you that when they come to be cross examined in the dock nothing in their data and evidence collection will undermine the case.

Choose wisely therefore and you will find the benefit they bring to your tricky and trying case far outweighs any cost of employing them.

Time’s up: judicial review claim for super-sewer dismissed

From the London Evening Standard 22/01/15:

A council was today accused of being “totally incompetent” after the legal challenge against London’s controversial super-sewer collapsed because it submitted court papers late.

Southwark’s leader today sought to explain the cock-up by blaming “ambiguous” rules setting out deadlines for submitting papers.

Don’t snigger.  However much you might want to.

Lib Dem opposition leader at Southwark Anood Al-Samerai said: “We all trusted the council to represent our community in court.

“Now the case for a judicial review has been thrown out all because the council couldn’t manage to submit its paperwork on time.

The council explained it had been working to a time-frame which would have been acceptable had new reforms currently being discussed in Parliament been passed.

But with the new rules yet to come into full force, the judge applied existing rules which deemed the council’s court papers to be late.

On the face of it, this sounds unforgivable.  Job number one in running any kind of litigation is to get the timing right.  Heck, it’s built into most matter-management software these days.  Superbly formed legal arguments don’t count for much if your claim is thrown out for failing to adhere to the time requirements.

But is the relevant rule on timing as ambiguous as the council claimed?

Let’s have a look.

There’s a good write-up on this by the Government Lawyer, so I won’t bother reinventing the wheel paraphrasing.  Yep - I’ll take the lazy route and quote the source verbatim:

The Planning Act currently says that the claim form must be:

"filed during the period of 6 weeks beginning with ... the day on which the order granting development consent is published."

If the [decision] is published on Thursday 1 January, then is the last day for a claim Wednesday 11 February or Thursday 12 February?  It seems that the judge decided it was the former yesterday.

Time to get counting on your fingers.

The Criminal Justice and Courts Bill, which is almost at the point of Royal Assent, will amend the deadline in Planning Act (and several other acts). Section 91(4)(c) will change the above text to the claim form must be:

"filed before the end of the period of 6 weeks beginning with the day after ... the day on which the order granting development consent is published."

That would make it 12 February in the example.

The Civil Procedure Rules say:

"Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose."

That suggests Thursday 12 February.

Yes.  That makes a lot of sense.  It follows the general rule on calculating time periods under the CPRs: the start day should normally be regarded as day zero and you count forward from there, unless the relevant period is described as "beginning with" a specified day, in which case that day is included in the period.

Having said that, the Planning Act 2008 is not one of 'the planning acts' in that context.

Update: I’ve edited the following segment of the post after initial publication.  Angus Walker, author of the post I quote above (and of the Planning Act 2008 blog), kindly drew my attention to section 118 of the Planning Act 2008.  That section sets out the time period for bringing a relevant JR claim and overrides the CPRs.  In light of that, my points in the following two paragraphs are no longer valid.  My bad.

Whoah. Back up a second there.  It’s not one of the planning acts?  Let that sink in for a moment.

A cursory read of section 336 of the Town and Country Planning Act 1990 suggests that the Planning Act 2008 indeed isn’t one of the relevant ‘planning acts’.   If it isn’t, then CPR 54.5 (5) doesn’t apply, meaning the application must surely be subject to the general rule on timing for judicial review claims set under CPR54.5(1).  That rule says the time period for bringing an application for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.

Either way, I can’t see that the ‘Wednesday 11 February’ interpretation is the right one.  From Southwark council’s perspective, the decision is worth challenging.  (It’s known as a ‘punt’ in the legal profession which, yes, is a legal term of art.  Ahem.)

But what a frickin’ mess!  Wouldn’t some harmonisation provisions on timing applied to all types of domestic legislation and the civil procedure rules work wonders here?  

That much-cited aspiration for legal certainty should apply to the procedural stuff as well as to the substantive law.

And it would save members of the legal provision from a lot of grey hair and red faces.

It’s a hard knot life

Guest Post
Japanese Knotweed has received some legislative attention recently, perhaps due to recent media interest in how it is affecting the value of properties. The new Anti-Social, Behaviour, Crime and Policing Act 2014 seeks to address the issue where homeowners do not tend to the issue of knotweed on their property. According to the legislation homeowners might fall foul of the Act where they do not act reasonably to control or prevent the growth of knotweed.

Under the Act a Community Protection Notice can be issued by a local authority or the police, where the homeowner actions are a) ‘having a detrimental effect, of a continuing and persistent nature, on the quality of life of those in the locality’ and/or b) the homeowner acts ‘unreasonably’. Moreover, a failure to act also falls under conduct that is classed as ‘unreasonable’. The notice, therefore, now requires an individual to control or eradicate the knotweed on their property and breaching the notice without a reasonable excuse is a criminal offence. The notice must state: (1) what the action is that is having a detrimental effect on the quality of life of those in the locality; (2) a requirement that such actions will cease; and (3) that the homeowner will treat this INNS (Invasive Non-Native Species) within a specific time and prevent any future occurrence. The notice should also state that sanctions include a fixed penalty of £100 and on summary conviction a fine of £2,500 for individuals and £20,000 for organisations.

An individual or a body can activate a "community trigger" to request that the local authority deal with a persistent or previously ignored anti-social behaviour problem when their case meets a locally defined threshold. This could apply to knotweed or any other INNS. The local authority has a duty to undertake a case review and consider what action they can take to resolve the problem when someone activates the trigger. The local authority can still carry out a case review where the threshold has not been met, based on factors such as the persistence of the problem, the harm (or potential harm) caused, or the adequacy of response from agencies.  

The question remains as to whether this legislation is actually necessary, with one blogger describing it as ‘using a sledge hammer to crack a nut’.  It is hard to understand what the Act can achieve that the law of private nuisance cannot. The power to bring action against one disrupting your reasonable enjoyment of your land has always rested with the individual, it is difficult to see what basis there is for this new legislation.  In addition the new power does not address any damage that a private individual may have suffered.  If an individual wished to claim for damage that he had suffered personally then he would have use the common law of nuisance and or negligence to get redress.

So where does this new legislation leave us? With the threat of an ASBO for knotweed on top of potential private enforcement it is only likely to increase the stigma attached to properties affected by knotweed and cause even greater diminution of value as potential buyers seek to avoid affected properties at all costs.  

Rodger Burnett, Japanese Knotweed Claims

Party Games: pin the invoice on the schoolchild

From BBC News 19/01/15:

A five-year-old was billed for failing to attend a friend's birthday party - resulting in threats of legal action.

Alex Nash, from Cornwall, was invited to the party just before Christmas.

An invoice for £15.95 was sent by his schoolfriend's mother Julie Lawrence, who said Alex's non-attendance left her out of pocket and his parents had her details to tell her he was not going.

Alex's father Derek said he had been told he would be taken to the small claims court for refusing to pay.

Alex's parents, from Torpoint, had accepted an invitation to the party at a dry ski slope in Plymouth, Devon, just before Christmas.

However, they realised their son was double-booked and due to spend time with his grandparents, which he did.

I suppose sending an invoice is one way of doing it. (But really – what was she thinking?)

Putting the silliness of the situation to one side for a moment, could Mrs Lawrence make this claim stick? Let’s think about that one.

I think the answer’s probably no.

An action in contract would almost certainly fail for there being no intention to create legal relations, as well as there being serious doubts over the validity of both consideration and capacity (assuming, on this latter point, that it was the five year old who was entering into this supposed contract).

On the consideration point, I suppose it’s just about conceivable that a person agreeing to provide a place for another at a party, and that other agreeing to attend that party, might qualify as valid consideration. But I doubt it. Legal commentators have long observed that a court will always find consideration in circumstances in which it wants to make that finding. But I really can’t imagine that this would be one of those situations. You’d need a pretty creative advocate to even have a chance of successfully arguing that consideration can be reasonably inferred here.

So contract’s out. What else can we try?

What about tort?  Would Mrs Lawrence have any better luck bringing a claim for negligence (against the parents of Alex)?

I don’t think so.  Even if a duty of care could be established here, any claim in negligence would almost certainly fall foul of the general rule against recovery for pure economic loss.  What a bummer.

What about a claim in restitution then (we’re really scraping the barrel now)?

But there’s been no unjust enrichment by Alex or his parents. Another dead end.

I think we’re out of options, folks.  At least I can’t think of any.

So what might Mrs Lawrence have done differently?

I suppose she might have agreed with Alex’s parents that if he didn’t show up for the party, they’d pay her the relevant admission fee, and she could have recorded that agreement in a deed (correctly executed of course).

But short of that, I think she’ll have to whistle for her money.

And now the media have gotten hold of the story, her plan to try and recover that fifteen quid has backfired spectacularly.

Oh well. You can’t win them all.

Are Social Media Companies Left Open to Litigation By a Lack of Legal Safeguards?

Guest Post

Although social media is less than ten years old, its influence on not just the online world, but all forms of communication, has been immense. The influence of social media has spread beyond the online world to affect a great amount of culture.

Perhaps the scale and importance of social media is best represented in numbers. A total of 1.2 billion people have Facebook accounts, with hundreds of millions logging in to the website each day to check messages, view photos and interact with friends.

Other, ‘smaller’ social networks like Twitter have attracted more than 230 million active users. The userbase of Twitter sends out over 500 million collective tweets every single day – certainly not a small amount by anyone’s count.

The risk of defamation in social media
With the massive size of the social media world comes a considerable risk. Since the technology used in social media is almost completely instant, users can publish any message at any time, directed at almost any user.

In addition to this, permanent deletion is far from straightforward. Although users can easily delete individual tweets and status updates from their accounts, many of their messages remain on the servers of social media companies permanently.

One of the key legal issues of defamation in social media is determining whether the social media companies are responsible for the content their users produce. Does a Twitter user represent Twitter, or are they simply using the website to publish their own thoughts and opinions?

The legal question is complicated by the importance of freedom of expression, one of the most fundamental human rights. The second issue is the international nature of social media, where the user bases of social media services are international and law is not.

In countries governed both by local laws and EU laws, for example, there is already a tension between the two sets of laws. As of now, litigation is only possible when the message and dispute originate in the country in which libel litigation is pursued.

While their audiences are truly international, most social networks are based in the United States. Interestingly, there is little case law in the United States regarding the issue of social media libel – in fact, limited social media case law exists worldwide.

In January 2014, the first libel case related to postings on Twitter reached court. The case concerned a well-known celebrity – Courtney Love – who defended her tweet by claiming it was opinion, rather than defamation.

A 2013 defamation case regarding information published using Twitter – McAlpine v Bercow 2013 – resulted in a guilty verdict, although Twitter avoided being a party to the litigation itself.

Google, another provider of social media services, have been named as a defendant in a defamation case. The California-based company was part of the Tamiz v Google Inc 2013 case in England and Wales. Its defence was upheld – that it “did not know and had no reason to believe” it had contributed to the publication of the material.

There have been numerous smaller cases involving defamatory or libellous content posted on social media. Most have been averted by social media providers through the removal of offending content within a short amount of time.

The responsibility of individuals
In short, the short history of libel and defamation cases involving social networks and social media companies indicate that individuals are responsible for what they post online; not the companies that host their published opinions.

As social media companies act only as platforms for users to use to publish their thoughts and opinions, they appear to be adequately safeguarded from liability.

This article was provided on behalf of Vannin Capital, one of the UK’s leading specialist litigation funding providers.

Overriding Objections

From PI Brief Update email sent 12/06/14:

Last month's practitioner's section reported the case of Kaneria v Kaneria [2014] EWHC 1165 (Ch), in which it was held that Mitchell principles do not apply to in time applications for an extension of time. It was held that these applications should be decided by reference to the overriding objection [sic].

Hehe. That’s super. In my experience, litigation gives rise to a lot of ‘overriding objections’.

Drunk woman nearly killed stone dead

(As distinct from being killed stone alive.)

From BBC News 20/03/14:

A Londonderry woman, who was captured on camera being left in a bus lay-by by two police officers while incapacitated, has called for the officers to be sacked.

Bridget Mongan, 23, admits being drunk at the time, but said the officers should have left her on the pavement.

"My boyfriend was arrested and I got a bit upset," said Ms Mongan.

"I could have been killed stone dead.

Because being killed can result in you being left in some other condition, of course. Ahem.

"I don't remember how I ended up lying on the road. I don't remember a whole lot," she added.

That stands to reason, I guess.

Assuming the officers did in fact leave Mongan floundering around in a drunken stupor at a bus stop, I’m surprised they’d be willing to take the risk. As well as potentially committing an offence under the Irish equivalent of the Road Traffic Act by causing danger to other road users, it’s also very likely that the officers would be exposing themselves (and their employers) to civil liability through claims for negligence.

Handcuffing her to a lamppost while she ‘slept it off’ would have been a much safer bet.

Australian Grand Prix organisers considering possible claim for breach of contract

When I first heard an audio clip of the new Mercedes F1 powertrain running last summer, I knew trouble was coming. This year’s pre-season testing only reinforced that for me.

Now that the first race of the season in Australia is behind us, there can be no doubt.
F1, as we knew it, is dead.

For me, F1 is synonymous with the scream of a V10 engine which the sport adopted between the years of 1995 - 2005.  As a result, I wasn't particularly pleased when the regulations were changed for the 2006 season which saw a switch to V8 powerplants. But this year’s move to V6s has changed the sound beyond all recognition.

The visceral scream of an F1 engine in full anger is such a fundamental part of the atmosphere and identity of F1, taking it away is unthinkable.

But that's exactly what happened. The new engines have reduced the sound of the sport to something resembling an electric go kart formula. It's beyond disappointing; it's heart-breaking.

In the wake of the first farcical Grand Prix of the season, the media is now awash with news that organisers of the Australian Grand Prix are considering the possibility of bringing a claim for breach of contract against the commercial rights holder of F1 which arranges Grands Prix with the different race venues around the world.

Here’s what ESPN have to say:

Australian Grand Prix organisers claim their contract may have been breached because the Formula One cars were not loud enough.

Andrew Westacott, Australian Grand Prix Corporation (AGPC) chief executive, said after the race that the rule changes had impacted on the "sexiness" of the event and as a result fans did not get what they paid for.

I'll second that.

AGPC chairman Ron Walker has contacted Bernie Ecclestone and made it clear organisers are unhappy.

"One aspect of it was just a little bit duller than it's ever been before and that's part of the mix and the chemistry that they're going to have to get right," Westacott said. "Ron spoke to [Ecclestone] after the race and said the fans don't like it in the venue.

That's putting it mildly.

"We pay for a product, we've got contracts in place, we are looking at those very, very seriously because we reckon there has probably been some breaches."

Without knowing the content of the contract, it's impossible to say whether the Auz Grand Prix organisers may have a claim. Even if they do, it's far more likely to be settled quickly, with the assurance of some measures being taken to beef up the sound and the high-octane atmosphere for future years.

A thought struck me earlier. Why can't the FIA liaise with the 3 engine manufacturers currently in F1 (Mercedes, Ferrari and Renault) to essentially licence the powertrain technology to other motorsport series throughout the world? Heck, maybe there's even a place for a dumbed-down version of it in road cars - even at this stage. That way, F1 could rid itself of this millstone, allow the manufacturers to recoup some of the massive investment they've had to plough in to develop this technology and, crucially, allow the FIA to save face.

Westacott, who listed among his gripes the fact he did not need earplugs even in the pit lane, warned that European spectators were even more likely to be unhappy with the much quieter spectacle.

"Previously, it shakes the bones," he said. "I'd be confident we'll have a different sound next year."

I hope he's right.

I really don't think the passage of time is going to help F1 fans adjust to the new noise.  Something’s got to give.

What Should the Public Know About the Jackson Reforms?

Have you heard of the Jackson Reforms? Although these reforms make a number of important changes to the way civil litigation occurs in the UK, most members of the public have never heard of them. Our own informal surveys have found that very few people are aware of the important changes these reforms make to the law.

If we posed the same question to a crowd of lawyers, we would likely receive a very different answer. Although the general public is largely unaware of the reforms, the legal community has made a number of changes in response to them.

Most lawyers will be able to confidently state that the reforms were implemented in April 2013 as the result of a one-year in-depth review into the costs of civil litigation that become a core tenet of the 2012 Legal Aid, Sentencing, and Punishment of Offenders Act.

The 2012 act has resulted in serious changes to Civil Procedure Rules, with a major effect on the cost of civil litigation in the UK. The rules, which are difficult for many in the legal community to understand – are designed to reduce the cost of litigation.

As many people in the legal community, ranging from solicitors and barristers to a large number of judges, have struggled to understand the laws, it’s not surprising that such as large portion of the general public is also unaware of them.

The Jackson Reforms are important, and understanding them is worthwhile. The reforms have some significant effects on the cost of civil litigation in the UK, and understanding them is an important priority for those interested in the law.

Several areas of the law are affected by the reforms. These include:

• Public Liability Claims
• Employers’ Liability
• Personal Injury (PI)
• Road Traffic Accidents (RTA)

The key goal of the Jackson Reforms is to reduce the cost of litigation by simplifying and streamlining the process, as well as establishing clearer regulations. This results in benefits for clients in the form of reduced litigation costs and the simplification of the litigation process as a whole.

A key change introduced by the reforms is the prevention of lawyers collecting fees based on success for defendants that lose their cases. Lawyers also cannot collect premiums from after-the-event insurance (ATE) from losing defendants. Instead, lawyers are paid using contingency fees; these fees are a replacement for damage-based awards and CFAs.

Changes have also been made to the scale of success fees for personal injury court cases. Lawyers can now charge a maximum of 25 per cent of the total damages as a success fee, reducing the amount charged to clients. There is also a £50,000 cap on claims from road traffic accidents.

As well as capping the cost of success fees and claims for certain cases, the Jackson Reforms also provide more detailed and stringent rules regarding budgeting. Case budgets now need to be prepared in advance of a case and approved by the court at several stages in the process. This is to make budgets more appropriate to the case and further reduce the cost of litigation.

The Jackson Reforms are interesting not only for their content, but for the time at which they were implemented. The reforms were introduced alongside a serious reduction in the availability of government legal aid. The reforms, of course, have made alternative means of case funding more accessible for many litigants.

Prior to the reforms, there had been significantly less clarity regarding the approval of the courts for litigants to use third party funding. The reforms show that Jackson approves of third-party funding, giving funders a new level of access.

Since many of the claims made by successful litigants are quite large, paying a small percentage of the winnings to third party funders is an expense that many litigants are very willing to make. This is especially true when one considers the alternatives for these litigants; without funding, many would have to drop their claims.

The Jackson Reforms remain fairly new to the legal world, and many solicitors are still receiving education explaining their effects and outlining how best to comply with the new rules. As we watch the reforms evolve over the next few years, we will see their long-term effects for litigants, lawyers and the general public.

This article was written on behalf of Vannin Capital. Visit their website to learn more litigationfunding.com

Should I use a claims management company to make a PPI claim?

No. No you shouldn’t. It’s as simple as that.

PPI claims companies add no value whatsoever and the sooner they’re hunted to extinction, the better.

Making a PPI claim is incredibly simple and any layperson who can fill in a simple form can do it themselves. And making a claim for PPI mis-selling yourself means you won’t have to pay out up to 25% of any compensation you’re awarded – unlike the situation with claims management companies.

Thankfully, banks are spelling this out for potential claimants now.

For instance, RBS letters say the following:

Should you wish to complain we would urge you to complain directly to us, rather than using a Claims Management Company ('CMC') which may charge you up to 25% of any possible refund as a fee. We treat all complaints received directly from customers in exactly the same way as one from a CMC.

I guess that’s progress.

Flood damage – what can I do?

The UK is slowly emerging from its wettest winter since records began. Many people have had their homes and lives ruined by flood the unprecedented flood waters.

Damage from flooding can be devastating, with the financial loss representing just a fraction of the misery and heartache that victims suffer.

So what are your options if the worst happens and your property floods? More proactively, what can you do to minimise the risk and impact in advance?

What should I do if my property is affected by flooding?
Homeowners are responsible for any repairs that are necessary as a result of flooding. You are also responsible for replacing any belongings that have been damaged as a result.

Following flood damage, you should contact your insurer as soon as possible. All insurance companies keep records of customers, so losing your insurance policy documents in the flood should not prevent you from making a claim. If it's possible, taking photos of the damage (property and belongs) is a very good idea. Contemporary evidence tends to prove invaluable when making an insurance claim.

Your insurer should take care of any repairs that are necessary, as well as making arrangements to replace your damaged belongings. Keeping records of conversations, quotes and the work done by the party making repairs is always a smart move.

If your property is too badly damaged for you to remain there while repairs are made, your insurance company should relocate you to alternative local accommodation (such as B&B or a hotel), although this is dependent on the terms of your insurance policy.

I rent my own property from a private landlord. What are my rights?
Section 11 of the Landlord and Tenant Act 1985 ("the Act") states that it is the landlord who is responsible for most repairs.

Under the Act your landlord must:

• Keep the property’s structure and exterior in a good state of repair. This is the case even if the property was in a poor state of repair when the tenancy started.
• Repair the property when damage has been properly reported.
• Make sure that the property’s supply of gas, electricity and water is maintained.

Aside from the statutory protection, your tenancy agreement may also include other obligations of maintenance and/or repair that your landlord must comply with. Check your tenancy agreement carefully and take legal advice if in doubt. If your landlord fails to carry out their obligations you may be able to bring legal action against them for breach of contract.

I am a Council or Housing Association tenant. What rights do I have?
Local authorities and housing associations (private registered provider of social housing ("PRPSH") or registered social landlord ("RSL")) have a legal duty to repair damage and disrepair in your property. Section 11 of the Act, discussed in outline above, also applies to PRPSH / RSL.

It is dangerous to remain in my property. What can I do?
Guidance on potential health and safety hazards for tenants is available. The 'Housing Health and Safety Rating System - Guidance for Landlords and Property Related Professional' sets out what is classed as a hazard. You can view this information here.

If you believe remaining in your property represents a hazard but your housing provider will not move you to alternative accommodation, you should contact your local environmental health department. They, with the help of the guidance, will determine if they need to take enforcement action against your landlord.

In the case of Council and Housing Association tenants, your housing provider should provide you with suitable alternative accommodation if you are unable to remain in your property whilst repairs are being carried out.

There is no such right for private tenants. If you have to leave because you cannot safely remain in the property, you should ask your landlord to terminate the tenancy agreement or to suspend the rent on until you can move back in.

If you are forced to leave your property and you have nowhere else to stay, you may be able to make a 'homelessness application' to your Local Authority. If you are considered to be in serious need, you should qualify for suitable accommodation until you can go back to your own property.

In addition, you may be entitled to claim a crisis loan. Crisis loans are interest-free loans from the Department of Work and Pensions (offered on a discretionary basis) and intended to help with expenses in emergency situations. For flood victims, crisis loans can be used as advances on rent for alternative accommodation or for everyday necessitates such as clothing and toiletries.

Crisis loan applications can be lodged, and in urgent circumstances approved, over the phone.

Good preparation can make all the difference when flood waters start to rise. Here are some points to bear in mind.

Insurance
It is highly advisable to have appropriate insurance on your property and the contents. Make sure you read your policy carefully! If in doubt, seek legal advice as to the policy's suitability for your circumstances. Sometimes the policy small print excludes certain types of claim. For instance, if you live within a certain distance of a river or flood plain your policy may not cover you for flood damage. Keep your insurance policy documents in a safe place, preferably in a waterproof folder. It's also a good idea to have copy securely backed-up online.

Take steps to protect your home
There are numerous practical steps you can take to help protect your home from flooding. The Environment Agency ("EA") website features a ‘flood plan kit’ which you can download. Tips include ensuring your gas and electricity supply is safely turned off and thinking in advance how you can best save as many possessions as possible (such as taking items upstairs or safely stacking smaller pieces of furniture on larger ones). Ensuring you have a safe means of escape should the flood waters rise is vital, too.

Stay Informed: get to know the flood warnings
The EA might issue one of three different warnings when an area may be affected by flooding:

1. Flood alert. This is the lowest grade of warning and means that flooding is possible and residents should be prepared.

2. Flood warning. The intermediate grade. Flooding is expected and immediate action by residents is required.

3. Severe flood warning. This is the most serious grade and means that severe flooding is expected and there may be a danger to life.

Sign-up for flood warnings
If you sign up to the free Floodline Warnings Direct, you can be sent a direct message when flooding is expected which may affect your property.

Social media may also prove invaluable in staying up to date with flood warnings for your area (assuming it is safe to either use your smartphone or some other appropriate communications device).

Car Window Policeman Pay-Out Demonstrates Legal Right over Emotional Reaction

Guest Post

The newspaper headlines this week that have bemoaned and cried in shock at the decision to award ex-police officer Mike Baillon £430,000 in damages demonstrate that media outrage and emotional reaction account for little compared to legal right.

Mr Baillon quit his job as a police officer after a video of him smashing a pensioners car window went viral and was viewed by more than 30 million people worldwide. He claimed that other officers were making his position in the police force untenable and he felt forced to leave his position.

But despite the widespread criticism that Mr Baillon received from co-workers and others in the wake of his action, he was cleared of any wrongdoing and his complaint of constructive dismissal was upheld.

The internal investigation into the case cleared Mr Baillon and found that he had expertly used a conflict management technique known as an ‘explosion of force’ that is taught to officers.

Mr Baillon explained: “The reason I left was because of the treatment I received from senior officers. There's a culture in the police of joking. I fully accept that. That was never a problem.

“My wife suffered a miscarriage. It was shortly after the video was leaked, and I hold the stress that was there at the time for her losing our baby. Somebody wrote something on my locker which was personal to us. They fully knew the impact of what they were writing on my locker and the effect.

“It was something that I found highly personal and that I found highly offensive and insensitive and the organisation did nothing about that.”

Anser Amin of Walker Prestons Solicitors explains: “this case is a perfect example of the fact that we, fortunately, live in a society that upholds its legal responsibilities and does not bow to media pressure. If you have been personally or financially affected by somebody else’s actions then you may be entitled to compensation. Even if you do not morally believe in the result of this case, it was legally sound and the court’s legal responsibility has been upheld”.

The pensioner involved in the incident was also awarded £65,000 in compensation from the police force despite refusing to pull over whilst being pursued by the police for 17 minutes for speeding and driving without a seatbelt.

The compensation package that was awarded to Mr Baillon was decided upon to cover loss of earnings and a loss of pension.

The JACKSON REFORMS – are judges being too harsh?

Guest Post

As early as 2009 in his final report on reform of costs and civil procedure rules, Lord Justice Jackson made it very clear that his recommendations would herald radical and seismic changes to the conduct of civil litigation in the United Kingdom. When these became law in the LASPO ACT of 2012 and finally began to be implemented on 1^st April 2013 the legal profession had no excuse to be shocked by the change of culture in the civil courts. The new watchwords were EFFICIENCY, ROBUSTNESS and COMPLIANCE. No longer was a culture of justice at any cost to be tolerated. The new regime would be justice at proportionate cost. To achieve this civil procedure rules were rewritten and budget control of cases became paramount in the new system. So nearly a year since its implementation, it is a prudent time to assess how the new system has influenced actual cases. To claim success, the new regime needed to win the support of the judges in the civil courts, for in the final instance it is their interpretation of and adherence to the rules that matter

With any new system, especially one aiming to tighten up and reform, a strict and disciplined regime might be expected. If leniency and tolerance of slack practices, such as non-compliance on court orders such as filing witness statements on time, exchanging budgets 7 days before the hearing, were allowed, then the reforms would have been a waste of time and effort. Accordingly, the judges charged with interpreting the new regime have gone for tough adherence to the rules. The  most publicised case to date has been Mitchell v News  Group Newspapers, a defamation claim. The claimant’s solicitors were late in filing their budget. The judge, Master McCloud, applied the appropriate sanction, which was to treat the claim as having filed a budget to claim only applicable court fees. Such would have lost the claimant fees of over £500, 000 had the claim succeeded. The new sanction was CPR 3.9. A second hearing before the same judge, for relief against the sanction failed. The mitigating factors put forward by the claimant’s solicitors included staff shortages and pressure of work. The lack of indulgence marked the new stricter interpretation of CPR rules. The judge also cited that another case had lost its slot in the court’s timetable because of the failures.

Careful and fair use of court and judicial resources had been another aim of the Jackson reforms. Basically the judge had been unprepared to accept any excuses in the breach of the rules and court directives. Her judgment emphasised that the “new overriding objective was not only to deal with cases justly, but at proportionate cost to ensure compliance with rules, orders and practice directions” and that ,“ the stricter approach under the Jackson reforms has been central to this judgment.”

This was the first case where the Jacksonian principles had been applied and the first to go to the Court of Appeal. Again strict adherence to Jackson’s reforming philosophy meant that the original judgments were upheld. In November 2013 the Master of the Rolls, Lord Dyson emphasised that their decision was “harsh”, but justified it, “ if we were to overturn the decision to refuse relief, it is inevitable that the attempt to achieve a change in culture would receive a major setback…. We hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.”

With senior judges appearing so robustly supportive of the Jacksonian philosophies of greater efficiency, better business practice and careful cost management, then it is hardly surprising that recent judicial decisions might appear harsh and tough. But to achieve a more disciplined and compliant civil justice system, they would need to be. It is always easier for a new regime to start out tough and relax later. Too much tolerance and a relaxed approach now would not be the way forward to achieve any meaningful change in civil litigation culture.  After all, that is what the Jackson reforms are all about.

This article was written by Vannin Capital. Visit their website to learn more about how the Jackson Reforms could affect you.

Are personal injury claimants vulnerable to “fickle” insurers?

Guest PostA recent case in which an insurer attempted to make changes to a claim for a road traffic accident based on a change of heart on admission of liability has highlighted how vulnerable claimants can be to the whims of insurers.

In many cases claimants will deal with a number of different representatives from their insurance provider, making them exposed to changes in personal opinion – one insurer may want to approach the claim in one way, but another individual at the same company may have a very different view, and if they become the lead representative on the case it can cause real issues for claimants.

In the case mentioned above a recent applications to resile from an admission of liability was rejected by the court. The application was rejected for many reasons including the fact that no new evidence had come to light and the main crux of the accident was that liability had merely been mistakenly admitted.

As well as this there was no evidence to suggest that a claimant had been deliberately misleading, and as the claimant’s accident occurred more than three years ago – the standard time limit for making a claim – they would be left unable to claim the compensation they are entitled to should the claim in progress suddenly change track.

The judge in the case ruled in favour of the claimant and agreed that should the claim be stopped it would leave the claimant in less than ideal position.

This was clearly the right decision and it is positive to see the legal system veering on the side of claimants, who are the victims. The case also shows that claimants can be at the mercy of insurance firms – their case may be moved from person to person, and this could change its focus considerably.

More must be done to ensure that claimants are protected, and that the original focus and drive of the case remains in place regardless of who ends up handling the case. It is extremely unfair on claimants when insurers attempt to change their mind with no new evidence. It can happen when a file changes hands within an insurer and a new file handler takes a more bullish approach, for example.

McHale & Co is a full service law firm based in Altrincham, Cheshire, with expertise in family law, criminal defence, civil litigation, motoring offences and business crime.

Personal Injury Compensation Claims – be aware of the time limits or risk losing out

Guest PostIn the UK, there is a general time limit of three years in which a personal injury claim for compensation must be made. If proceedings are not started in a court within this time frame, then the case becomes statute-barred and cannot be pursued.

Usually, the three year timeline starts either from the date of the accident or from the date that the person becomes aware that the injury is linked to the original incident. This is referred to as ‘the date of knowledge’. This ‘date of knowledge’ can be extremely useful for cases that involve exposure to a toxic substance, such as asbestos which may not reveal itself until decades later.

However, there are some variations about when the time limitation is set. For example, in fatal cases, the three year limitation begins from the date of death or from the date the death was linked to the original incident, be it an accident or exposure to a toxic substance. In addition, if a person dies part way through making a claim for compensation, the three year deadline begins from their date of death, enabling their family to continue with the claim if they wish to.

There are special rules too for children and for people being treated under the Mental Health Act (1983). In such cases, the time limit does not begin until their ‘legal incapacity’ is removed. For a child, this is at eighteen years old and for a patient being treated under the Mental Health Act, the date of their discharge. The three year time limit still applies. Therefore rather than having three years from the date of the accident in which to pursue a claim the law states that a ‘child’ has three years from the date of their eighteenth birthday, that being the age of maturity, in which to bring a claim. Their claim, therefore, must have either settled or court proceedings have been issued before the child/adult reaches the age of twenty one. This rule gives the parents or guardians of the injured child a choice, at the time of the accident, as to whether to pursue a claim immediately (and have any compensation awarded to the child placed in a court fund until the child reaches the age of eighteen) or to wait until the child reaches the age of maturity and let them make their own decision as to whether to pursue a claim for compensation for the injuries they sustained as a child.

A peculiar anomaly to this is if an accident occurs on an aircraft. The limitation period in this instance is only two years from the date of the accident.

In order to minimise the risk of your claim being prevented in law from being made due to the statute of limitation it is advisable to seek legal advice from an expert personal injury solicitor as soon as possible after the accident. Similarly, if a child has been injured it would be beneficial for the parents or guardians to talk through the options with a solicitor who specialises in child injury claims so that they are clear about what action they need to take.

For those who have had the misfortune to be in an accident or have been exposed to a toxic substance, it is also a good idea to seek legal advice at the earliest opportunity. In this way the injured party can avoid the risk of becoming statute-barred and have the best chance of making a successful claim for compensation.

Close Thornton Solicitors have a team specialising in personal injury claims. For further information, please contact Shaun Burke on 01325 466461 or email shaun.burke@close-thornton.co.uk

How to Budget for a Court Case

Guest Post

On the 1st of August 2013, High Court judge Master McCloud cut to the root of the issue regarding budgeting for civil litigation with these words.

“Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC (Case Management Conference) even at relatively short notice if proper planning has been done.

The court must now, as part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice direction. The stricter approach under the Jackson reforms have been central to this judgment.”

Following the new funding rules implemented by Lord Justice Jackson on the 1st of April 2013, civil procedures follow new guidelines and requirements regarding funding.

These new guidelines and procedures essentially state that:

1. Each party involved in civil litigation needs to prepare a costs budget for the case in a standardised form, which includes estimated future litigation costs.

2. Before (or during) the first case management conference, the court will review and approve the costs budgets submitted by both parties.

3. As the case progresses, the court will ensure that both parties comply with the agreed upon costs budgets.

Given that over five months passed between the implementation of the new funding laws and Master McCloud’s statement, it’s far from shocking that Master McCloud is taking such as strict and straightforward approach to their endorsement.

The majority of lawyers have been aware of these laws since 2010, or at least their coming. The lawyers for Andrew Mitchell MP – the former chief whip whose libel case against News Group Newspapers stalled due to a budgeting issue – learned the importance of complying with the laws the hard way.

While leave was granted in this case and the lawyers eventually filed a costs budget for the case, the notable issue makes it clear that the court system is taking a strict and focused approach to budgeting and costs management. This approach is being used already in the Technology and Construction Court and Mercantile Courts.

One of the major objectives of the reforms was to control the large increase in the cost of litigation. Uncertainty regarding costs, particularly the total fees a client in any court case could end up paying, was also an issue. The new rules require that costs are reasonable compared to a claim, making it significantly simpler for potential litigants to prepare a realistic budget for their cases.

As budgets are agreed upon early in the case – in some cases, six weeks before the first case management conference – clients can enter their cases knowing, to a far greater degree than before, what their potential costs may be. Both parties benefit from this and are able to enjoy a greater level of confidence regarding their case.

With these laws now almost nine months old and Master McCloud’s statement over five months old, it’s very unlikely that solicitors should expect a degree of flexibility if the rules are broken. When followed and enforced properly, these laws give both clients a heightened level of confidence and clarity regarding case budgeting.

This article was written by Vannin Capital. Visit their website to learn more about legal funding options in the UK.

Buttock-shuffle claimant gotcha’d via covert surveillance

From the London Evening Standard 24/10/13:

A grandmother who claimed she could only shuffle down stairs on her buttocks managed to trick a hospital consultant as part of a “fraudulent” bid to claim more than £750,000 in compensation, the High Court heard.

Yowsa!

Barbara Fari, a mother of 13 who is in her sixties, sued Homes for Haringey on the grounds her life had been “drastically altered” after she tripped on a paving stone in Hornsey in May 2008 and hurt her knee.

You’ve got to watch out for those paving stones (particularly the uneven ones)! Of course, it will help your claim considerably if you actually trip over the ruddy thing and injure yourself as a result.

The council-run organisation initially admitted liability and offered to settle. But it changed its mind after Mrs Fari said she needed round-the- clock care because she could no longer walk unaided and could only climb stairs by shuffling up and down on her buttocks and lodged a claim for more than £750,000.

That claim was struck out at Central London County Court last October after Mrs Fari was caught on camera moving around without help during a secret surveillance operation.

That makes a change. Alleged cases of benefits fraud (or fraudulent civil claims) are usually uncovered via evidence of the relevant person dancing drunkenly on a table or twerking like the world isn’t watching - Miley Cyrus style.

 

 

 

 

 

 

 

^{Requisite photos of drunken table-dancing & Miley Cyrus twerking … as if you needed reminding!}

The judge rejected Mrs Fari’s right to any payout and referred her case to the High Court for abuse of process.

That really will give Mrs Fari a reason to clench her buttocks.

New Personal Injury Law may drive up quality of care

Guest PostEarlier this year there was a drastic change in the law concerning personal injury claims. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was introduced in April 2013 and now represents a profound change in aspects of Legal Aid.^. There are winners and losers with this new act but the reason it had to be done has a sound basis. It was basically to combat the many fraudulent claims being made in ‘crash for cash’ illegal groups who arrange ‘accidents’ just to claim and also the surprising amount of legal companies who were making money from this.

Before the New Act:
Previously a personal injury claim was done on a ‘No Win No Fee’ basis and nobody could fail to notice the intense media advertisement of the companies handling these claims. If you were injured you would actually receive the full amount of compensation due with no personal cost at all. The solicitor handling your claim would rake back any costs involved, e.g. medical reports and expenses, fees from the court etc from the other party being claimed against – via their insurance cover.

After the April Act:
There is now tougher regulation and a ban on the ability for solicitors and claims management companies to handle any referral fees. Some rogue companies previously also took fees from customers just on a verbal basis without there being any written and agreed contract. This is now also banned.

The client now has to pay any of these additional fees out of their compensation amount awarded; they will be totally responsible for all their expenses.

The crucial part of this regulation is that if there is a dispute fees may be anything from just a few hundred pounds up to thousands. Any complex cases may even result in the personal injury claimant having to pay the defendants costs too. Consequently small claims have to have substantial and hard evidence of proof of accident to make sure that their claim is proven. Even so the problem has to be faced that the claimants costs may rise substantially and even wipe out the amount they are awarded completely. Good legal advice is therefore advisable before any claim is pursued.

So is this Act working?
In July the government reported that many Claims Management Companies have now shut down – and this is not just an odd few – it is hundreds! The Claims Management Regulation Unit (CMRU) released figures that proved the efficiency of the new Act. In March 2012 there were 2,435 registered companies handling personal injury claims. In June 2013 – only 2 months after the new Act was introduced, this number had reduced to only 1,700.

There are still mixed views on the eventual outcome of the new regulations and only time will tell as to whether they have achieved all their goals. However conclusively it has to be said that these measures are bound to have an effect on the ‘compensation culture’ which was becoming far too open to misuse. Ordinary people who are honest have been suffering the consequences of dishonest claims through a rise in their insurance costs. It is therefore definitely now advisable for anyone who feels they have a right to make a personal injury claim from an accident, to consult a solicitor first before contacting a Claims Management Company. The quality of advice honest claimants need can be now almost guaranteed to be of higher quality and the company handling the claim will necessarily take more care in their judgements and legal advice.