Wednesday, 16 November 2011

Sutton v Syston Rugby Football Club Limited [2011] EWCA Civ 1182: home disadvantage

I’ve written before that judges are moving against personal injury claims; too many people trying it on, like Mr Tomlinson, who ignored a “No Diving” sign put up by Congleton Borough Council and then blamed the council when he broke his neck whilst, er, diving.  He got short shrift.  So did a student at Nottingham Trent, injured in a rugby match, but this time with a lot more judicial regret.
It was one of those common rugby incidents – a player dives for a try and gets pushed over the touchline – but Mr Sutton was doubly unlucky.  Not only did he miss the try, but his knee hit something half-buried in the turf.  He did recover to the extent that he re-started his rugger career, but was in pain for some months.  The parties didn't agree on the responsibility, but they did agree that the damages, should they be awarded, would be £54k.  So quite serious.  It also cut down on the costs of the trial; no need to prove that.
The issue to be proved was whether the home rugby club was responsible for the half-buried thing.  It was an occupier for the purposes of the Occupiers’ Liability Act 1957, it therefore had to make sure everyone was reasonably safe.  The pitch and environs had to be free of harmful stuff.  Especially to lawful visitors like rugby players.  Had the rugby club done its duty?
The club had not helped itself; it had not checked the pitch, or its environs, pre-match.  Bad.  The problem for Mr Sutton was to prove that a reasonable inspection would have discovered the half-buried thing.  Had it been very difficult to spot, the club could not be liable – the club would only be liable if a competent inspection would have noticed the thing, rather than a 100% perfect archaeological scrutiny.
The half-buried thing was a bit of plastic that had marked a cricket boundary.  Someone had broken the top part away, leaving a jagged stump smothered in the turf.  The problem was that Mr Sutton himself said that he had not seen it; a team-mate who had helped Mr Sutton in the aftermath could not see what had caused the knee injury.  it would therefore have been next to impossible for even a careful inspector to have seen it.
Therefore the club was not liable, said a 3-0 Court of Appeal.  Somewhat reluctantly, but the Court felt it impossible to impose such a strict duty on an occupier.  The real blame lay with the chap or chapess who broke the boundary marker away without warning anyone, leaving such an obvious danger; however such a chap or chapess might not be easy to trace...

Thursday, 3 November 2011

Sofia City Court, Bulgaria v Atanasova-Kalaidzhieva [2011] EWHC 2335: avoiding the arrest warrant

Being a prosecutor general in Bulgaria is not a bad job.  You’re in charge of criminal prosecutions; you can choose whom to prosecute, whom not to, what evidence is deployed and so on.  What’s more, you yourself are immune from prosecution, unless you give yourself permission to prosecute you.
It might be said that such an office is open to abuse.  You could blackmail people and plant evidence on them.  You could facilitate crime on an unimaginable scale by not investigating.  If any of your prosecutors under you tries to investigate, you can transfer them from Sofia to Plovdiv.
One former prosecutor seems to have been neck deep in such activities.  The accusations against Mr Filchev are legion.  Fraud, blackmailing magistrates, blackmailing politicians, blackmailing journalists, taking bribes, prosecuting business and political opponents, breaching UN sanctions.  All laid at his feet.  Two of his deputies started gathering evidence against him.  The day after a press conference given by the deputies, one of them was assassinated.  The other was dismissed, arrested, eventually murdered.  Not the only deaths involved in the Bulgarian prosecution office.  Another had been suicided.  An assistant, Ms Georgieva, confided to a colleague that she had been taping Filchev’s unlawful instructions, which he only gave orally; shortly after such confidence the assistant was murdered.  Her confidee fled to the UK because of death threats from the prosecutor.   The confidee’s husband was arrested and kept in custody for a year and a half in Filchev’s special detention centre; his trial was called off when the judge recused himself rather than find in the deputy’s favour.  A second trial appears still to be proceeding.
All somewhat nasty.  Still, Mr Filchev was evidently determined to get to the bottom of things.  He issued a European Arrest Warrant alleging that Mrs Atanasova-Kalaidzhieva had murdered Ms Georgieva.  Thing is, Mrs Atanasova-Kalaidzhieva was the assistant who had fled to Britain...
The European Arrest Warrant would deliver her right into the hands of the person who had threatened to kill her.  Mrs Atanasova-Kalaidzhieva launched a writ of habeas corpus to avoid such a fate.  The Bulgarian response was simple.  It was now a member of the EU, each member of the EU had to trust the other members of the EU to look after criminal proceedings properly, and there was no right to look behind the Bulgarian prosecution structure...
The warrant was stayed in 2009 on the basis that it was launched in bad faith.  A technicality, and one which may not apply given the wondrous European Framework Directive and Extradition Act 2003 that permit the European Arrest Warrant.  But the English Court thankfully ignored it – essentially determining that an arrest warrant that was launched in bad faith was not actually an arrest warrant.  It was re-issued in December 2010 and Mrs Atanasova-Kalaidzhieva again resisted.
The Court stayed the second attempt as an abuse of process – it was the same as the first, no new information had been provided and although Mr Filchev had resigned his post he still seemed to exert some influence – and on appeal the Court upheld the stay.  The Framework depends on mutual respect; the Bulgarian court had afforded the English court none of that by refusing to address the issues raised in 2009.  What’s more, the evidence was that the procedures in Bulgaria were patently unfair and downright dangerous.  A fair trial of Mrs Atanasova-Kalaidzhieva was impossible.
This is an extreme case and a marginal one; worryingly the Court said that had the Bulgarians addressed some of the concerns raised it may have considered extradition.  Even though it may have been tantamount to a death sentence – simply because Parliament, in a moment of delusion, had passed the toxic Extradition Act 2003.  Hopefully these obiter dicta were window-dressing to prevent any appeal to the European Court by the Bulgarians for Britain’s ostensible non-compliance with Treaty obligations – because the idea of returning Mrs Atanasova-Kalaidzhieva to Mr Filchev is, based on the unchallenged facts of the case, repugnant in the extreme.