Property Law article
This appeal concerns the question of whether article 8 of the European Convention on Human Rights (“article 8”) requires UK…
OB (by his mother and litigation friend) (FC) (Respondent) v Aventis Pasteur SA (Appellant),  UKSC 23
The Respondent sought an order that APSA be substituted as a defendant in place of APMSD in the proceedings against…
Reclaiming Motion:- In the action the petitioners sought a recovery order under the Proceeds of Crime Act 2002. The first…
Crown Appeal Against Sentence:- On 29 May 2008 the first respondent, a building contractor, was constructing houses in Dundee when one of its employees, Andrezej Freitag, fell from the third to the second storey of a block under construction and sustained injuries from which he died. The first respondent was indicted to Dundee Sheriff Court and pled to contravention of sections 2(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974 namely that they failed to ensure the health, safety and welfare at work of one of their employees by failing to provide inter alia a guard-rail, barrier, or similar collective means of protection. The second respondent, a director of the first respondent was employed by the first respondent as site manager and was the sole full-time safety representative of the first respondent at the locus, pled guilty to a charge under section 37(1) of the 1974 Act. The sheriff fined the first respondent £5,000, discounted from £7,500, and the second respondent £4,000, discounted from £6,000. The pleas had been tendered at the earliest opportunity and the sheriff discounted the fines by a third to reflect those pleas. Here the Crown appealed against both sentences on the grounds that the starting off point selected by the sheriff was unduly lenient. In his report the sheriff stated that the fine imposed against the first respondent was limited as a substantial fine would almost inevitably result in the first respondents falling into administration or liquidation and the fine imposed was one which reflected the funds available to the first respondents. On behalf of the Crown it was submitted, referring to paragraph 25 of the Definitive Guideline issued by the (English) Sentencing Guidelines Council that:- “… where the [health and safety] offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more” albeit the offence was committed prior to the operative date of the Definitive Guideline. The court considered the appeal having regard to a number of reports by accountants instructed by the Crown and the respondents, which were not available to the sentencing sheriff to consider whether either of the sentences imposed could be held to be unduly lenient.
The underlying private law action brought by the six claimants in this case is for damages for improper detention and mistreatment as part of the “war on terror”, phrased in conventional torts such as false imprisonment, trespass to the person and misfeasance in public office, and public law breaches such as breach of the Human Rights Act 1998 on the basis that the treatment was torture or inhuman or degrading treatment. They had been held at Guantanamo Bay. Various government departments were said to be complicit in the harm suffered: they filed an open defence, but also sought to rely on closed material and to have proceedings that would consider this closed material by way of special advocates (ie keeping the defence away from the Claimants and their lawyers). This was presented as little more than an obvious extension of the principles of public interest immunity and the hearing of some evidence in private through the well-established process of the special advocate; indeed, they suggested that the process of considering and making the relevant PII applications would take some 3 years or more, and so the alternative process suggested would secure expedition. Silber J accepted these arguments: the Claimants appealed, joined by human rights organisations and some media companies.
The Court of Appeal overturned the judgment. Lord Neuberger MR, speaking for the Court, noted that the question was whether in the absence of a specific statutory regime it was permissible to order a private law trial for damages to be heard in private: the unambiguous conclusion was that there was no such power in the absence of a statute to that effect (though the possibility of the parties agreeing to the process was left open). In truth, determined the Court of Appeal, the approach adopted by Silber J was not a matter of developing the common law in a flexible way: rather, the judge had forgotten a fundamental principle of the common law, namely that of open justice and the adversarial process, under which the lawyers of the parties see all the relevant evidence and have the ability to use or test it. In short, the rule was that fair trial involved irreducible minimum requirements that could not be taken away in the absence of specific statutory authority: that could not be provided by the general lan guage as to effective case management in the CPR.
In a claim relating to pension switching advice the Court of Appeal considered how s. 32 (1) (b) of the Limitation Act 1980 applied where there were multiple losses arising from a single unlawful act and one of those losses was deliberately concealed. On the facts, the Court held that the claimants’ suffered both a concealed loss and another unconcealed loss at the same time and thus the cause of action could be completed by reference to the unconcealed loss. Lord Justice Rix went on to consider what the position would have been had the first loss been deliberately concealed in terms of postponing the commencement of the limitation period even where a subsequent loss making complete the initial cause of action was present and discoverable sufficient to start time running under s. 14A of the Limitation Act 1980. He concluded that the deliberate concealment would permit a claim to be brought in such circumstances even where time had expired in respect of the second loss under s. 14A of the Limitation Act 1980 because s. 32 (1) (b) was a separate regime. Lord Justice Elias considered that while there was much to be said for this conclusion he did not wish to decide the point and Lord Justice Moses took a similar position.
A claims management company passed its cases to Consumer Credit Litigation Solicitors, the trading name for a sole solicitor’s practice. Those claims were brought against a large number of finance companies and high street banks. Costs orders were made against the Claimants in a large number of claims. The consequence was that a large number of Claimants sought to discontinue their proceedings, but attempted to recover some or all of their costs from the Defendant banks. Those applications were dismissed and costs awarded to the finance companies and banks. The finance companies and banks then sought to obtain non-party costs orders against the claims management company and the solicitor’s practice. The claims management company accepted that it should be liable, jointly and severally with the relevant Claimants for costs orders made against them. The firm of solicitors failed to obtain legal costs insurance or to advise its clients of this and was acting without instructions. In such circumst ances this rendered it liable to be made the subject of a non-party costs order.
Where a client is given positive legal advice as to the prospects of his claim it would be expected that the client relied on that advice in continuing his claim and the evidential burden of disproving a causative effect should shift to the law firm to disprove it. The advice given by the law firm was overly optimistic on facts of the case particularly in the context of an arbitration and the difficulty of challenging a decision of arbitrators on the construction of a clause by way of appeal. Accordingly the client was allowed to recover its losses for not having compromised the dispute at an earlier stage.
The Defendant law firm had provided the family business with corporate advice for many years. The business needed to raise capital. One of the main shareholders was very unwell and thus consideration was given as to how a capital raising process might be of benefit to that shareholder’s estate for inheritance tax purposes. It was believed that business property relief would attract to shares held in the business and thus reduce the potential inheritance tax liability that would arise on the equivalent sum held by an individual’s estate as cash or equivalents. However the business property relief did not apply to the shareholder’s new subscription as at the time of her death as she had not held the shares for two years and the subscription could not benefit from being linked to her earlier shareholding as it did in respect of an earlier rights issue. Claims were brought by the shareholder’s executors and beneficiaries under her will. The Defendant law firm sought to strike out the c laims and applied for summary judgment. Although the individual could only suffer nominal damage during her lifetime the contractual retainer might provide a duty upon which the estate could sue for damage in respect of loss suffered after death. Although the parallel claim in tort could not succeed the area was one in a field of developing law which the Court of Appeal may wish to consider particularly in light of the different nature of personal representatives and residuary beneficiaries and was unsuitable for summary judgment.