Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10: policy judgment

It has been known for a long time that asbestos can cause mesothelioma.  Just one filament can give someone cancer.  A cancer that hibernates in the body for twenty years before striking.  A horrible, invariably fatal, illness.

Asbestos is still around in buildings and has to be treated with care.  Unfortunately, back when asbestos was first found to be carcinogenic, companies did not treat their safety responsibilities with the requisite care.  Over a period of decades, many workers fell ill, many contracted mesothelioma. 

So many of these workers issued proceedings against their employers, seeking compensation.  The employers sought to hide behind the doctrine of causation.  What the companies said was “you can’t prove that it was exposure to our asbestos that gave you cancer.” 

The problem is obvious.  You cannot bring a claim in negligence if the negligence didn’t cause your loss; you might be knocked over by a speeding motorist, but if you’d’ve been knocked over if he’d been doing the limit because it was your own fault for not looking, you won’t win.  So in these asbestos cases an employer could say “you worked for us for three years; you had other asbestos exposure; chances are, it was not one of our filaments that made you ill.”  On a balance of probabilities, a claimant is going to be in difficulties.

In the case of Fairchild, the House of Lords reached a pragmatic solution.  Looking away from the strict legal position for a moment, what had happened in the intervening years?  Employers told insurance companies that they might be at risk of asbestos claims; insurance companies hiked the renewal premium to take that into account.  So for years insurers had been building up their coffers to deal with such claims.  Now they were landing, the insurance companies were trying to deny liability.  Worse, in many cases, a single employee had been working for, say, half-a-dozen companies – all of whom had the same insurer.  So the insurance company was saying that because the claimant could not show which of the six companies caused mesothelioma, it was not responsible – even though it had to have been one of the companies it insured.

Therefore, in Fairchild, the House of Lords decided that the claimant could sue any of the companies that employed him.  They would all be liable, on the well-established ground that they had increased the risk of cancer.  There was a wrinkle in a later decision that tried to split the liability up pro rata – which meant that if 9 out of 10 employers had since gone bust, the claimant could recover only 10% of the damages it should have had – but that was legislated into oblivion.

The Sienkiewicz case was a slight variation of the Fairchild principle.  Mrs Sienkiewicz is the personal representative (and daughter) of Mrs Costello, who had died of mesothelioma; Mrs Costello had only been employed by one company that had exposed her to asbestos.  The Court held that that company, Greif, had only increased the risk of cancer by a slight amount (less than 20%); however the Court held that that was enough to make it liable for 100% of the claim.  Greif took it to the Supreme Court.  Surely it should only be liable if it increased the risk by more than half?  Normal causation principles?  The chances were Mrs Costello caught the disease naturally?

The Supreme Court disagreed.  Two principles came together in this one; the principle in Fairchild and the principle in McGhee (the latter being that causing a material increase in disease risk is enough).  Just because there was only one employer didn’t matter.  The Court did think it was a little harsh on Greif, but Parliament had made it clear that if someone had to bear the rough end of a judgment it should be the guilty, not the innocent, party.

Quite a narrow decision, it may only apply to mesothelioma rather than e.g. miners’ lung diseases.  At the very least though it will deliver a measure of justice to those dying of mesothelioma.

Edwards-Tubb v J D Wetherspoon Plc [2011] EWCA Civ 136: inexpertly done

In a trial, nobody cares about what you think.  You’re not there to think.  The only person allowed to think in a trial is the judge.  “What do you think caused the accident?”  “Oh, I think it was speeding…”  That will never be asked, you will never be allowed to answer.  You stick to the facts.

Unless you are an expert witness.  They are allowed to think.  This is because no matter how thoughtful the judge, they will not be able to think around causes of faults in things like nuclear reactors or foot and mouth or likelihood of recovery from an injury and so on.  So they get help.  Expert witnesses are allowed to think; they are allowed to give their opinions.

Because they are given a special status, their roles have to be described carefully.  They have to be given permission by the Court; who knows, the judge might find two opinions a little tricky and will demand one single expert, instructed by both parties, do the thinking for him.  More to the point, the Court wants to stop expert shopping.  I.e. you find the doctor with the most optimistic (or pessimistic) prognosis of your injury.  No good having a doctor who thinks your whiplash will fade in a week or two.  You want one who fears for your very ambulatory abilities.  Ramp up the damages.  That’s obviously not good for the Court.

So, the Court will give orders on how and whom you instruct.  You might need to nominate someone who might face a challenge (“Dr Depressive?  He’s biased…”).  Or you might need to change your mind, as your doctor is a bit too optimistic.

Which is what happened with Mr Edwards-Tubb.  Yes, that IS his real name, he DOES exist, this is not a Royston Vasey thing.  He fell over in 2005 whilst working for Wetherspoons; the company admitted fault.  The only spat was over the injuries.  No doubt Mr E-T had hurt his legs and knees; he however claimed he had whole body pain.

As per, the thing was faffed around until the claim was issued right up against the time limit; as per, each side instructed a medic; as per, they disagreed.  Thing is, there was a surprise.  Before issuing the claim, Mr E-T’s solicitors gave the names of three doctors they were going to choose from to Wetherspoons’ lawyers.  Again, as per your average personal injury claim.  However, when the expert reports were exchanged, Mr E-T’s report was signed off by a doctor who had not been named.  And it happened to mention that Mr E-T had been seen by a different doctor earlier.  One whose report – if there was one – had not been disclosed.  So Wetherspoons asked to see it…

Mr E-T’s solicitors said no.  The earlier report, if it existed, was privileged.  I.e. they had a right to refuse to show it, as it would reveal their tactics in the case.  Wetherspoons said that, in that case, it would ask the Court not to give Mr E-T permission to use this report.  On the basis that one of their original three doctors must have had a different view of the case. 

The Court of Appeal had a look at it.  The Court does have the power under the normal rules to demand a hidden expert report be dragged out of hiding – albeit only in rare circumstances.  One of those circumstances is when a party wants to change its mind over its expert, sometimes the price it has to pay is to show exactly why it wants to change its mind, usually because its expert has said “actually, your case is hopeless”.  As in this case, only it was slightly different – the other cases came when a party’s expert had been named specifically, or where a further examination (of person or property) was needed, or where the report had been obtained before going to Court; in this case Mr E-T hadn’t given the name of his expert, had already been re-examined, and had got the previous report when thinking about suing. 

But the principles, said the Court, were the same.  The whole ethos of the Court rules is to try to stop the gladiatorial combat and move towards amicable settlements.  That isn’t helped by a party instructing doctor after doctor until it finds someone who will say what the party wants.  More to the point, the expert’s duty is to the Court, not to the party.  So it helps the Court to see the earlier report.

Ergo, said the Court, the report should be disclosed.  Without doing so Mr E-T could not rely on doctor number 2.  A tricky tactical decision – should Mr E-T just go back and rely on his initial doctor, and leave the second one floating around somewhere, to try to prevent damaging aspersions being cast on the original?  Or does this unravel the whole case?  As yet, we don’t know.  What we do know is that the principle has been set.  If you need a second opinion, and the other side know you have a first opinion, you’ll probably have to show both.

Jones v Kaney [2011] UKSC 13: inexpert experts

The Court has been changing its attitude to negligence in the court room itself.  For a long time the idea that a barrister could be sued for negligence was unthinkable.  A barrister merely presented the law.  If the barrister made a pig’s ear of it, that was irrelevant to the result.  The Court would get the right decision.  What’s more, it stopped re-trying cases when someone was disgruntled that they’d lost.

That has changed.  The Court some years ago in the Hall v Simons case decided that barristers could be sued for negligence.  One major pillar down.  Now the question was whether expert witnesses could be sued as well.  Expert witnesses are the only people allowed in trials, apart from the judge, to have opinions.  Lawyers state the law and their argument; witnesses state the facts.  Only a judge will need help with complex medical or engineering matters, hence expert witnesses.  Usually one (at least) per party.  With a pre-trial meeting to get them to agree, or at least to agree to disagree.  Even narrowing down the areas of disagreement would be useful for the trial.

You may think on the face of it that they should.  If someone goes to Court based on a duff report, why should the expert be immune from their duffness?  Anything that makes them do their job better would be welcome.

On the other hand, what happens if an expert changes their mind?  Report goes in, they discuss with the other side, realize they may be mistaken.  If they change their mind, are they going to be sued?  Should they keep shtum and hope it goes away?  Or should they be encouraged by immunity to co-operate with the other side and get a just resolution?  The expert owes a duty to the Court as well as to the client, after all…why should they be inhibited from this?

As a result, for four hundred years experts had been immune from being sued.  No more.  The Supreme Court, by a 5-2 margin, has swept that away.

The facts (at least, those assumed by the Court to reach its decision) of the Jones case are dispiriting.   Mr Jones was sitting on his motorbike when he was hit by a drunk driver.  He sued, the big debate was about his depression.  His expert – Dr Kaney – said it was serious; the driver’s doc said it was an adjustment period.  The two doctors had their expert meeting, and Dr Kaney pretty much agreed with everything the other doctor said.  Why?  Turned out she hadn’t done her prep.  And she felt bullied into signing a statement with which she did not agree.  Mr Jones tried to change his expert, Court said no, and he settled for a lot less than he would have done had Dr Kaney not signed off the joint report.  So, Mr Jones sued Dr Kaney, who tried to get the claim thrown out on an immunity basis.  She won at every stage – until the Supreme Court stepped in.

The judgment is quite long, but mostly goes through the dicta in the cases where immunity had been firmed up, to see the reasons behind it; Phillips LJ was pretty unconvinced that there was a consistent line of reasoning, and seemed to think that there was immunity because everyone assumed there was immunity.  And went through some of the objections to removing immunity, dismissing most of them as being baseless.  To some extent that’s correct, a proper expert will do their job properly, and changing their mind is not evidence of negligence.

The problem is that the two dissenting opinions seem to me to be more persuasive.  Lady Hale asked whether this is really a Supreme Court matter, or should the Law Commission look at it in detail, and consider positions such as insurance for professional negligence in the round, rather than in an almost ad-hoc hearing?  Both her Ladyship and Lord Hope also expressed concerns about the reactions of the losers.  Will they go straight after their experts?  The removal of advocate immunity has certainly not led to an explosion of litigation against them, perhaps because the wise legal adviser will always build in an element of doubt, but as for experts, would collapsing under fearsome cross-exam lead to them being blamed – and therefore sued – with the result the whole thing is re-tried without the opponent?

The Supreme Court considered these points and dismissed them.  Without much in the way of reasoning.  Indeed the question of whether people would give up being experts if faced with being sued was dismissed with a few comments – based on a show of hands at an expert conference and a lack of evidence on the point.  I should have thought that this would have meant there should be more investigation into the position, rather than an ex cathedra judgment, but we are where we are.  And for a negligent expert, that’s right on the hook.

The upshot for Dr Kaney?  There is no finding of negligence against her.  The exact circumstances of her advice will be gone through at a trial.  This was only a preliminary issue with her looking for a quick win.  We await to see whether she really signed a joint report because she was bullied into it – or whether she had valid misgivings.

One area that the Supreme Court was keen to emphasize was that the case only applied to a “friendly” expert.  The opponent owes no duty to you.  One wonders if this will be further eroded; if you end up with a 10 day trial rather than a quick win because the other side’s expert spun a line of rubbish to the Court, could it be argued that you have suffered a loss as a result of that expert’s breach of duty to the Court and those before it?  Wasted costs orders to be made?

Morgan v The Spirit Group Limited [2011] EWCA Civ 68: careful what you wish for

I yield to nobody in my admiration of the Court of Appeal.  The judiciary have a very difficult job, distilling years of argument into a tight and digestible set of facts that then have to be applied to the law.  And the Court of Appeal has to then make sure that, where the law is on a knife edge, it is developed in the right way.

Sometimes the Court of Appeal is hamstrung by what it considers to be outdated precedent, hence referrals up to the Supreme Court.  And sometimes the Court of Appeal does not even need to do that.  It may be in a straightjacket, but it can still kick.

Mrs Morgan broke her wrist in a nightclub.  Bad move for the nightclub as Mr Morgan is a solicitor.  He acted for ’er indoors in her claim against the nightclub operators.  He was successful; at least to a point.  There was no need for a trial on liability, just one day in court on the damages.  Mrs M was claiming around £40k, she ended up with just over £10k.

The problem was the next step.  Costs.  One day hearing, on damages alone, work beforehand nailing liability, maybe one witness, how much would you charge?  Few grand?  Twenty?  Think again.  £99,206.29.  Including VAT, yes.  But Mr Morgan was claiming ten times what his wife had been awarded.  Half of that was a success fee – yes, he was working on a conditional fee.

The judge was astonished and slammed it down.  He had harsh words about Mr Morgan’s conduct of the case and decided that the absolute limit for costs for a minor claim would be £20,000.  He threw in another five k on top of that to take into account the conditional fee and left it there as a summary assessment.

Mrs Morgan appealed.  Obviously she had a vested interest in hubby receiving another £75k in costs, especially as half of them would be pure conditional fee profit.  And, much to the Court of Appeal’s dismay, she was successful.  The Court of Appeal was constrained by precedent to state that the judge’s approach was legally flawed.  He couldn’t just guesstimate an appropriate figure without at least making a token attempt at a line-by-line analysis of the bill; after all, there could be special reasons behind the escalation in costs.

It puts judges in a bind.  Lady Justice Black, giving the lead judgment, admitted her sympathy for the judge, and also impliedly for other judges; having said that they are forced by precedent to go through with a complex analysis, she tried to lighten the load a bit.  “Naturally, any judge carrying out a summary assessment appropriately focused on the detailed breakdown of costs will have firmly in mind that the court's discretion when carrying out such an assessment is very wide and that a minute examination of detail is not always required and a broad brush can, where appropriate, be used. It would be a great pity if the summary assessment procedure were to become bedevilled by formulaic and time consuming intricacy which would often be wholly disproportionate to the exercise being carried out and the nature of the litigation in hand.”  Perhaps the trial judge had got the right answer, but with the wrong working.

The only conclusion was that the costs had to go back and be re-heard on a proper, detailed, summary assessment.  But there was a sting in the tail that contains a poison fatal to Mrs Morgan’s chances of that bonus £75,000.  The Court of Appeal said that the judge was right in saying that this was a basic matter.  Something that could easily have been dealt with by the Court under the fast track procedure.  Fast track.  I.e. a regime that puts a strict limit on costs.  For a start, the advocacy for the final day’s hearing would be limited to a few hundred pound.  And, as the nightclub owner’s brief put it before the Court of Appeal, and which the Court of Appeal pointedly included in its judgment, the costs on detailed assessment would probably be something south of the £25k Mrs Morgan felt was insufficient.

The Court of Appeal giveth, and the Court of Appeal taketh away.  Blessed be the name of the Court of Appeal.

Attrill & ors v Dresdner Kleinwort Ltd & anor [2011] EWCA Civ 229: a wunch of bankers

Once upon a time, bonuses were for especial performance.  Indeed, in the real world, they are.  However when considering the banking world one is reminded of the words of the immortal Sir Humphrey Appleby.  “Do people still get the outstanding merit award?”  “Oh yes.  Everybody.”   

DK was a bank.  Note the “was”.  Its normal procedure for bonuses was to bung money into a pool in November, tell its employees what they’d get from it in December, and pay it out in January.  Problem came in 2008.  DK was losing money hand over fist.  €575m in the first quarter, even more in the second.  No money for bonuses?  That was it, thought the staff, we’re off.  Like rats leaving a sinking ship.

So in August 2008 DK held what it called a “town hall” meeting.  DK announced to employees that there would be a guaranteed bonus pool of €400m.  Where was this money coming from, given that DK was running out of it?  Aha, you may well ask.

The staff, encouraged by the size of the trough into which they could immerse their banking snouts, stopped leaving.  In December DK announced the bonuses payable to staff – yes, DK was paying bonuses, even though the bank’s performance might have suggested that any exceptional performance was non-existent.  The small print though was interesting.  “Subject to variation.”  The letter stated that it depended on whether DK’s earnings position deteriorated.

Evidently DK thought its earnings position HAD deteriorated, because when the bonuses came to be paid out in January the numbers were shrunken by 90%.  Common sense?  Not to the DK employees.  Not satisfied with their basic salary and bonuses amounting to up to €2m from a dying organization, a number brought proceedings against DK and its eventual purchaser Commerzbank.  The bonus was an entitlement, they said.  It had been promised to them, they had relied on the promises by not jumping ship.  The bonus could not be altered.

DK pointed to the wording in the letter, and to the contracts of employment; bonuses are discretionary.  And applied to strike out the claim as being hopeless in law.

First time around, DK won.  But on appeal the claim was re-instated.

This shows the importance of the summary judgment procedure.  It’s not something one can use when faced with a big dispute of fact; for that you need a trial.  If you’re going to try to strike a claim (or a defence) out, you’ve got to show it’s flawed legally.  Not factually.  The factual flaws will be purged via cross-examination.  Even if it’s obvious that a malicious claimant is telling lies, the court won’t kick him out before a pukka trial, with the appurtenances of swearing in, evidence rules, big coat of arms behind the judge and so on.  It will not have mini-trials.  Not least because that may result in the same people giving the same evidence loads of times.

So DK had to show that the bankers’ claim was flawed on a legal basis.  Which was very difficult.  As it turned out, too difficult.  What DK was saying is that the contracts showed the bonus was discretionary and the letters that went out in December 2008 showed the bonus was discretionary.  Therefore the employees had no expectation of receiving anything; the answer to “what bonus will you receive?” was not “£x”, but “I am told it will be £x, but that’s subject to various things.”  Without that number being definite, there’s no contractual  promise, no entitlement and no claim.

On the face of it, that’s fairly sound.  But bonuses have to be paid according to contracts – and that includes properly considering whether an employee is entitled to a bonus.  If you stick in the contract a possible bonus, you can’t just ignore it; you have to think about whether to pay one and, if so, how much.  And that means you have to consider it fairly; you can’t decide not to pay Mr X a bonus just because he’s a ginge.  That’s an improper consideration and you’re in breach if you take that into account.

And these considerations are often considerations of fact.  The sort of thing that has to be proved in the crucible of the witness box.

Which is what the Court of Appeal looked at.  Had DK promised, at the “town hall” meeting, to pay bonuses?  Dunno, you’ll need witness evidence for that.  Were the reductions applied to the “promised” bonuses bona fide deductions that could be made under contract?  Dunno, you’ll need witness evidence for that.  Does the announcement of a guaranteed minimum bonus pool mean it all has to be paid out to the members?  Dunno, you’ll need witness evidence for that.   Was there consideration given by the employees in staying on when led to believe they’d receive a bonus?  Dunno, you’ll need witness evidence for that.

Not surprising therefore that the Court of Appeal re-instated the claim.  Too much had to be said in the witness box.  The claim has lots of legal trickiness and factual exploration in it – it is not something that can be slung out early doors as being hopeless.  If anyone’s going to say it’s hopeless, that’s the job of the trial judge.

Ellaway v IBC Pension Trustees Ltd 80200/1, 80201/1, 80202/1, 79406/1: showing your working

Slightly unusual one this time; not a Court case, but an Ombudsman case.  The Pensions Ombudsman.  Tony King holds the current role, which is to be a quasi-informal adjudicator of disputes involving pensions.  Pensions are complex things, legally.  There’s a chunk of money that needs to be used to give pensions to pensioners.  Who actually owns it?  Well, a pension is a form of trust; someone (usually an employer) sets up the trust, pays money into it, offers membership to people (usually employees) who will also contribute on the promise they will get a pension one day, when they retire or when they’re too ill to work, with maybe a surviving partner's or dependent's pension thrown in.  The hows and whens of getting a pension are set out in the trust document, and the trust takes the money paid in and invests it; the trust owns the assets, and the trustees control the trust.  That way, you have two layers of ownership.  The investments – usually stocks, gilts and property – are legally in the hands of the trustees who do the buying and selling; the beneficial interest is owned by, well, no-one’s quite sure, but it’s a mishmash of those receiving a pension, those who are paying into the trust – usually called a pension scheme or pension plan – and the employer.

If you have a problem with your pension scheme, you complain to the trustees (the people who “own” the pension scheme money and look after it for the pensioners past, present and future), they have to consider it, and if they reject your complaint you can take it up with the Ombudsman.  Quite an important tribunal, although it can be appealed – quite easily – to the High Court; that however puts you on a big costs risk if your appeal doesn’t win.  Unlike before the Ombudsman, which is free to consumers, and where there are no costs awards.

Many complaints are about maladministration; trustees not awarding paying out a pension properly, putting the scheme money on Saucy Sue in the 3.15 at Kempton Park, that sort of thing.  One thing the Ombudsman is keen to emphasize is that trustees give reasons for their decisions.  Trustees may have acted properly in what they do, but if they don’t show their working, how can you tell?

One previous Ombudsman, Dr Julian Farrand, was quite an interventionist chap.  Trusts often give quite a bit of discretion to the trustees as to investing and paying pensions.  And Dr Farrand often disagreed with how trustees did this sort of thing.  What’s more, he would use his position to impose his decisions on the trustees.  The High Court squished this; Dr Farrand may be quite right to think the trustees got it wrong, it said, but he cannot interfere unless the trustees’ decisions are completely mental.  The fact that Trustee A would refuse an ill health benefit, for example, and Trustee B would not does not make either trustee wrong. 

So it’s quite difficult to challenge trustee decisions.  But one way in which you can do so is if the trustees do not give reasons for their decision.  It’s not a big step to go from there to say “the decision MUST be mental, the trustees won’t tell me why”. 

And classically these decisions involve families.  The recent decision regarding Mr Ellaway’s pension is a case in point.  Mr Ellaway worked for IBC Vehicles and was a member of its pension scheme.  Sadly he never enjoyed a pension as he died whilst still working.  The IBC scheme’s trust said that, in these circumstances, the scheme would pay a lump sum to a beneficiary.  It was up to the trustees to decide who the beneficiary should be. 

The trustees had a choice; Mr Ellaway left his parents, a sister, brother and niece.  He was not married, but he was engaged; he had moved in with his fiancée just 8 weeks before he died.  So, on the face of it, a choice of six.

The trustees therefore looked at the evidence available to them of what Mr Ellaway would have wanted.  However there was no will.  There was also no “expression of wish” form, a document employees usually sign telling trustees where they would want a lump sum paid.  So the trustees did some digging, and found out about Mr Ellaway’s wedding plans.  They decided that the lump sum should go to Mr Ellaway’s fiancée.

Sensible enough?  Not for Mr Ellaway’s mother, siblings and niece.  They complained to the trustees and, when they rejected the complaint, to the Ombudsman.  The big problem was not the decision itself, but how the trustees had gone about it.  The trustees had investigated, true; they had even visited the other Ellaways and fiancée.  The problem was that the trustees did not tell the Ellaways why they were visiting – the Ellaways thought it was just to get bank details and so on for the payment.  Had they been told it was an information gathering exercise, they could have given some information that was relevant – such as the Ellaways being financially dependent on Mr Ellaway.

The Ombudsman looked at the decision-making procedure.  The trustees had not given reasons.  Not full ones, anyway.  They had not told the Ellaways what and why they were investigating.  They had not dug out much written evidence.  There was also a problem as to whether the fiancée fell within the category of beneficiaries; as she wasn’t family (yet), she needed to be financially dependent, and that was dubious, given they’d been living together for two months and kept bills separate.   The trustees had concluded that the fiancée was the best recipient, which is fair enough; but they hadn’t concluded she was an eligible recipient.  They’d taken that as read.

So the Ombudsman kicked it back to the trustees.  He didn’t overturn the decision, because the fiancée wasn’t part of the complaint (indeed she’d already received the money – such is the glacial pace of these things, she had received it back in 2007, in fact); he just said that the trustees had to work out whether she could be a beneficiary, and then, having done that, whether she was the best recipient.  And if not, to pay a lump sum to whichever beneficiary the trustees saw fit.  It may be that the trustees come to the same conclusion again, but they have to get the reasons right.  Had they shown their working – written down that the fiancée was dependent, giving the reasons why – they’d’ve gotten away with it.

Mann v Portugal and the United Kingdom [2011] ECHR 337 (1 February 2011): European Court of Human Wrongs

I mentioned before the European Court decision in Hirst, which has caused controversy and which has already been distinguished by an English judge.  If that decision was controversial, this one is shocking, disgraceful and a positive affront to justice.

Portugal hosted the European football championships in 2004.  Paranoid about hooliganism, it brought in a system of fast-track trials to deal with violence.  One such fast track trial was that of Garry Mann.  He was put on trial for hooliganism, convicted and imprisoned for 2 years, suspended while his appeal went forward; in the meantime, on the advice of the British consul, who said he wouldn't be sent down back home, he returned to England.  Five years later the Portuguese sought to extradite him to serve his sentence; his lawyers had forgotten to appeal, and the Portuguese learned Mann had not been serving his sentence in Britain.

Serves him right?  A convicted hooligan?  Well, not when you consider the trial.  Conducted in Portuguese, there were two interpreters between fourteen defendants; one of the interpreters was a hairdresser who spoke a smattering of English.  Mann had five minutes to prepare for his trial with a lawyer he didn’t know.  He had witnesses who could have proved his innocence, but in those five minutes they could not be found.  CCTV footage would also have shown he was not involved, but again five minutes was insufficient time to dig it out.

No wonder Moses J criticized the trial, and the extradition proceedings, in the most vehement terms.  But given the European Arrest Warrant and the European fiction that such a trial in Portugal was just as valid and binding as a proper trial with proper procedures, he could not do anything to prevent the extradition.  Mann, a patently innocent man, was returned to Portugal to serve his sentence.

Still, he would be able to bring a claim against the Portuguese government for breach of his human rights, wouldn’t he?  Pretty blatantly unfair trial.  Er, no.  In a decision that has just been published, the European Court of Human Rights rejected his complaint as inadmissible.  Because it was too late.  He should have brought it within 6 months of his trial in Portugal, not 6 months of his extradition.

6 months of his trial.  A trial where he didn’t know what was going on; where he left his appeal in the hands of his lawyer (who comprehensively naused it up by cocking up the paperwork).  And following which the British consul told him to forget about it as he could serve the sentence in England – where it would be commuted to nothing.

What’s more, the European Court held that there was insufficient evidence that the trial was unfair.  Insufficient evidence?  One English judge stated that “in circumstances that were so unfair as to be incompatible with the applicants’ right to a fair trial”.  Another stated that it was an embarrassment and a serious injustice.  A police observer described it as a farce.  All findings which the Portuguese authorities did not challenge.  Yet the European Court did not consider this sufficient evidence.  In part because the judges couldn’t agree on just how unfair the proceedings were…

So now we know why the European Court of Human Rights wants to give prisoners the vote.  It is quite happy to see the innocent sent there.