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...
Wednesday, 16 November 2011
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.
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.
Thursday, 27 October 2011
AXA General Insurance Ltd & others v Lord Advocate & others [2011] UKSC 46: part of the union
There is an age old debate whether the Court can strike down an act of Parliament. Such an action would be a bold step. It would overturn democracy in favour of a kritarchy. On the other hand, can the democracy deny itself rights without the protection of an independent judiciary? Can Parliament legislate away the right to vote?
No such case has yet come forward. At least not for the UK. But the point has been raised with regard to Scottish Acts.
Pleural plaques are spots that can grow on people’s lungs if exposed to asbestos. They are not “damage”. They do not cause harm or injury and in the Rothwell v Chemical & Insulating case the House of Lords ruled there was no claim for pleural plaque infliction. The Scottish Parliament thought this was unfair; it passed a law (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) opening up an avenue for insurers to be forced to pay those with pleural plaques. The insurers thought this unfair in turn and went to the Supreme Court to overturn the Act.
There were a number of attacks. One was that the Scottish Parliament could not legislate on such an issue; it was ultra vires. The Scottish Parliament can only pass laws that Westminster allows it to pass. The test of that was compatibility with the Human Rights Act and, in particular, the right to property. The insurance companies said they were losing property, i.e. money, and that Scotland had no right to take it from them. The Supreme Court had to look therefore to see whether that interference was for a legit aim and was a reasonably proportionate way to do so.
The Supreme Court held that it was. Lots of Scots have pleural plaques, the Clydeside shipping industry being particularly prone to exposure to asbestos, the Scottish Parliament wanted to legislate to cover this, and it had done so in a human right compatible manner. So the Act was within the competence of Holyrood. far so good.
But then there was another step; the constitutional question of striking down Acts. The insurance companies said there was an argument that Holyrood had used its power capriciously. And if it had, it was subject to judicial review. Like every government decision. Was Holyrood indeed subject to judicial review? Could the Court look at an Act of the Scottish Parliament and deem it unfair?
The Supreme Court held that, although Scottish Acts were as much law as anyone else’s, they were subject to powers delegated by the Crown. Its own establishing documents say that it cannot go outside its powers – any act that tries to do that is not really an act after all. Someone has to decide whether an act DOES stay within Holyrood’s boundaries; that someone surely has to be the Court.
So the principle is there. How far CAN a Court interfere with what is an expression of democracy? Is there a fundamental right for justice to overrule democracy that democracy cannot challenge, or does the Court derive its power from the people and therefore must always step back from challenging? Eminent judges like Bingham, Neuberger, Steyn and Hailsham had come to different conclusions over this...and the Supreme Court preferred not to resolve that debate. Instead they said that there is a statutory limit on Holyrood’s competence, and that’s all there was to it. An irrational decision would surely step over the Human Rights Act obligations, which would take an act outside of being an Act.
The odd thing about the judgment is that it confirms there is no limit to Holyrood’s power, as delegated to it; there is nothing that says “all your laws must be in relation to Scotland”. Presumably Scotland passing a law that would impact the English would be squished by the Human Rights Act compatibility – no taxation without representation sort of thing – but otherwise the Scottish Parliament can be as irrational as it likes. Scots law could diverge very far from English unless Westminster shackles Holyrood. Which it can – so would it? That would impact the very nature of the Union; ever closer or ever separate?
No such case has yet come forward. At least not for the UK. But the point has been raised with regard to Scottish Acts.
Pleural plaques are spots that can grow on people’s lungs if exposed to asbestos. They are not “damage”. They do not cause harm or injury and in the Rothwell v Chemical & Insulating case the House of Lords ruled there was no claim for pleural plaque infliction. The Scottish Parliament thought this was unfair; it passed a law (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) opening up an avenue for insurers to be forced to pay those with pleural plaques. The insurers thought this unfair in turn and went to the Supreme Court to overturn the Act.
There were a number of attacks. One was that the Scottish Parliament could not legislate on such an issue; it was ultra vires. The Scottish Parliament can only pass laws that Westminster allows it to pass. The test of that was compatibility with the Human Rights Act and, in particular, the right to property. The insurance companies said they were losing property, i.e. money, and that Scotland had no right to take it from them. The Supreme Court had to look therefore to see whether that interference was for a legit aim and was a reasonably proportionate way to do so.
The Supreme Court held that it was. Lots of Scots have pleural plaques, the Clydeside shipping industry being particularly prone to exposure to asbestos, the Scottish Parliament wanted to legislate to cover this, and it had done so in a human right compatible manner. So the Act was within the competence of Holyrood. far so good.
But then there was another step; the constitutional question of striking down Acts. The insurance companies said there was an argument that Holyrood had used its power capriciously. And if it had, it was subject to judicial review. Like every government decision. Was Holyrood indeed subject to judicial review? Could the Court look at an Act of the Scottish Parliament and deem it unfair?
The Supreme Court held that, although Scottish Acts were as much law as anyone else’s, they were subject to powers delegated by the Crown. Its own establishing documents say that it cannot go outside its powers – any act that tries to do that is not really an act after all. Someone has to decide whether an act DOES stay within Holyrood’s boundaries; that someone surely has to be the Court.
So the principle is there. How far CAN a Court interfere with what is an expression of democracy? Is there a fundamental right for justice to overrule democracy that democracy cannot challenge, or does the Court derive its power from the people and therefore must always step back from challenging? Eminent judges like Bingham, Neuberger, Steyn and Hailsham had come to different conclusions over this...and the Supreme Court preferred not to resolve that debate. Instead they said that there is a statutory limit on Holyrood’s competence, and that’s all there was to it. An irrational decision would surely step over the Human Rights Act obligations, which would take an act outside of being an Act.
The odd thing about the judgment is that it confirms there is no limit to Holyrood’s power, as delegated to it; there is nothing that says “all your laws must be in relation to Scotland”. Presumably Scotland passing a law that would impact the English would be squished by the Human Rights Act compatibility – no taxation without representation sort of thing – but otherwise the Scottish Parliament can be as irrational as it likes. Scots law could diverge very far from English unless Westminster shackles Holyrood. Which it can – so would it? That would impact the very nature of the Union; ever closer or ever separate?
Wednesday, 12 October 2011
Ferdinand v MGN Limited [2011] EWHC 2454 (QB): caught offside
Can an England captain keep the media shtum when they find he’s playing away? No. His right to privacy is trumped by the public’s right to know.
Does this contradict past privacy cases? Naomi Campbell seeking treatment or Max Mosley seeking other sorts of treatment? No. They never made a big deal of their afflictions. Mosley never held himself out as a paragon of marital virtue; Campbell never held herself out as a paragon of private sobriety. The media knew this. Hence the News Of The World trying to tie a Nazi angle into the Mosley story. The public need to know if the head of an organization that represents them has political views that would cause his impartiality into doubt. Mosley is not a Nazi; the removal of that angle removed the public interest.
So why does the public have a right to know that Rio Ferdinand had had an on-off affair for a dozen years? Because his private life had a bearing on his position. Fabio Capello (England boss) said that he appointed Ferdinand as England captain because he was a good example. Unlike his predecessor – dismissed due to an alleged affair. Ferdinand wrote in his autobiography (or at least had had written for him) that he had given up the party lifestyle some years before when he settled down with his fiancée. He had said to a newspaper that he was now quite the family man.
All of these factors calculated to lead people to believe that Rio Ferdinand was an upstanding member of society; that he was someone who could be trusted. That’s one thing, but as part of it his name was valuable. The family man was paid to advertise things because he was a family man.
So when the Mirror published a kiss & tell story, and Ferdinand sued for the obvious breach of his privacy, the Mirror dragged this past history up. Privacy is not an absolute right. Sometimes the public’s need to know overrides someone’s privacy; it’s in the public interest to find a politician is a crook. This is more at the minor end. It is also, says the Court, in the public interest to correct a false image. The Mirror claimed that this is exactly what it was doing. Ferdinand was not the chillaxed role model; he was still conducting an affair at the moment he was made England captain.
Therefore the Court allowed the publication. There was a limited right to privacy – the Mirror could not be too intrusive – but the Mirror was on the right side of that.
It could have been very different. Had Ferdinand been a Paul Scholes, for example, a player who famously keeps his private life out of the public eye, there would surely have been no public interest; only if it had affected his performances, for example. But there would be no false public image to correct so no justification. Had Ferdinand not “written” a book or sought to correct a negative image in the media, he might have been fine...
Does this contradict past privacy cases? Naomi Campbell seeking treatment or Max Mosley seeking other sorts of treatment? No. They never made a big deal of their afflictions. Mosley never held himself out as a paragon of marital virtue; Campbell never held herself out as a paragon of private sobriety. The media knew this. Hence the News Of The World trying to tie a Nazi angle into the Mosley story. The public need to know if the head of an organization that represents them has political views that would cause his impartiality into doubt. Mosley is not a Nazi; the removal of that angle removed the public interest.
So why does the public have a right to know that Rio Ferdinand had had an on-off affair for a dozen years? Because his private life had a bearing on his position. Fabio Capello (England boss) said that he appointed Ferdinand as England captain because he was a good example. Unlike his predecessor – dismissed due to an alleged affair. Ferdinand wrote in his autobiography (or at least had had written for him) that he had given up the party lifestyle some years before when he settled down with his fiancée. He had said to a newspaper that he was now quite the family man.
All of these factors calculated to lead people to believe that Rio Ferdinand was an upstanding member of society; that he was someone who could be trusted. That’s one thing, but as part of it his name was valuable. The family man was paid to advertise things because he was a family man.
So when the Mirror published a kiss & tell story, and Ferdinand sued for the obvious breach of his privacy, the Mirror dragged this past history up. Privacy is not an absolute right. Sometimes the public’s need to know overrides someone’s privacy; it’s in the public interest to find a politician is a crook. This is more at the minor end. It is also, says the Court, in the public interest to correct a false image. The Mirror claimed that this is exactly what it was doing. Ferdinand was not the chillaxed role model; he was still conducting an affair at the moment he was made England captain.
Therefore the Court allowed the publication. There was a limited right to privacy – the Mirror could not be too intrusive – but the Mirror was on the right side of that.
It could have been very different. Had Ferdinand been a Paul Scholes, for example, a player who famously keeps his private life out of the public eye, there would surely have been no public interest; only if it had affected his performances, for example. But there would be no false public image to correct so no justification. Had Ferdinand not “written” a book or sought to correct a negative image in the media, he might have been fine...
Wednesday, 28 September 2011
G.F. & 88 others v Denmark [2011] ECHR 1331: Greece is the word
This one slipped under the radar a bit. The case itself is not extensive. Half-a-dozen paragraphs. Indeed it’s not really a case; it’s the government of Denmark withdrawing from the case, because it is going to adopt a judgment that came earlier in the year – and which got ignored.
The earlier judgment is the case of M.S.S. v Belgium and Greece. Application number 30696/09. Decided in January. Which, potentially, drives a coach and horses right through EU law on conflict of laws.
I’ve mentioned the Italian Missile on here before. The argument that has not, as yet, been applied in the English courts is whether it is contrary to human rights legislation for a matter in the Italian courts being left for the Italian courts to decide, on the basis that the Sun might become a white dwarf before the matter gets decided. After all, the Convention on Human Rights grants access to justice. And justice delayed is justice denied.
The problem is that the EU orders all domestic courts to treat all court systems equally; a fiction that is convenient for Eurocrats but dreadful for those who have to deal with said courts. Where is the incentive for improvement? After all, the Court of Exchequer worked out a quick and accurate system for contract claims because the Common Law courts were achingly slow – and the court fees were appealing. Which ultimately led to reform of the Common Law courts. Took a few hundred years, admittedly, but still quicker than the average Italian case...
But does this EU fiction contravene human rights laws? One other well-established principle is that asylum seekers should seek asylum in the first safe country they get to. Unfortunately for one Afghan asylum seeker (an interpreter the Taliban were trying to kill for that supposed apostasy) that country was Greece. The lot of an asylum seeker in Greece is fairly dreadful; locked up 20 to a room, no toilet access, no bed. So he legged it to Belgium and sought asylum there.
The Belgians decided that the asylum seeker should have sought asylum in Athens and sent him back. Where he was detained in a room with 19 others, no toilet access, no bed. All pretty dreadful and all in breach of Greece’s international obligations.
So, the asylum seeker sued the Belgian and Greek governments for breaches of human rights. The Belgian government was somewhat aggrieved by this; the Belgians had complied with their international law duties, there was no obligation on the Belgian taxpayer to support someone who had arrived in Europe via Greece, after all. The problem was that the various conventions and treaties to which Belgium (and Greece) had signed up provided that asylum seekers should not be treated in a degrading manner – Greece certainly breached that – and that a seeker should not be deported to a country where such degrading treatment would be applied. Belgium had done that, albeit under international law...
So, a conflict of international laws. How to resolve? Fairly easily. The point of the legislation was to protect asylum seekers from adverse treatment. Administrative convenience of dumping everyone in the first safe country they reach is overridden by the requirement to treat properly. Belgium knew Greece treated asylum seekers shoddily; Belgium facilitated this treatment by delivering an asylum seeker right into Greek hands. Belgium was therefore in breach. It should have ignored international law giving Greece priority.
One dissenting judgment came from the British representative – Sir Nicholas Bratza – who pointed out that the decision in M.S.S. went against the court’s decision a few months before allowing repatriation to Greece. Then again, precedent (one might argue principle) has never borne weightily on the minds of European judges. As it is, however, perhaps the various articles giving power to decide civil cases to a court first seised may contradict human rights law; if a contract is in English, has English law provisions, an English jurisdiction clause and all damages are in England, why wait years for an Italian court? Your human right to justice may demand an English court take it back...
The earlier judgment is the case of M.S.S. v Belgium and Greece. Application number 30696/09. Decided in January. Which, potentially, drives a coach and horses right through EU law on conflict of laws.
I’ve mentioned the Italian Missile on here before. The argument that has not, as yet, been applied in the English courts is whether it is contrary to human rights legislation for a matter in the Italian courts being left for the Italian courts to decide, on the basis that the Sun might become a white dwarf before the matter gets decided. After all, the Convention on Human Rights grants access to justice. And justice delayed is justice denied.
The problem is that the EU orders all domestic courts to treat all court systems equally; a fiction that is convenient for Eurocrats but dreadful for those who have to deal with said courts. Where is the incentive for improvement? After all, the Court of Exchequer worked out a quick and accurate system for contract claims because the Common Law courts were achingly slow – and the court fees were appealing. Which ultimately led to reform of the Common Law courts. Took a few hundred years, admittedly, but still quicker than the average Italian case...
But does this EU fiction contravene human rights laws? One other well-established principle is that asylum seekers should seek asylum in the first safe country they get to. Unfortunately for one Afghan asylum seeker (an interpreter the Taliban were trying to kill for that supposed apostasy) that country was Greece. The lot of an asylum seeker in Greece is fairly dreadful; locked up 20 to a room, no toilet access, no bed. So he legged it to Belgium and sought asylum there.
The Belgians decided that the asylum seeker should have sought asylum in Athens and sent him back. Where he was detained in a room with 19 others, no toilet access, no bed. All pretty dreadful and all in breach of Greece’s international obligations.
So, the asylum seeker sued the Belgian and Greek governments for breaches of human rights. The Belgian government was somewhat aggrieved by this; the Belgians had complied with their international law duties, there was no obligation on the Belgian taxpayer to support someone who had arrived in Europe via Greece, after all. The problem was that the various conventions and treaties to which Belgium (and Greece) had signed up provided that asylum seekers should not be treated in a degrading manner – Greece certainly breached that – and that a seeker should not be deported to a country where such degrading treatment would be applied. Belgium had done that, albeit under international law...
So, a conflict of international laws. How to resolve? Fairly easily. The point of the legislation was to protect asylum seekers from adverse treatment. Administrative convenience of dumping everyone in the first safe country they reach is overridden by the requirement to treat properly. Belgium knew Greece treated asylum seekers shoddily; Belgium facilitated this treatment by delivering an asylum seeker right into Greek hands. Belgium was therefore in breach. It should have ignored international law giving Greece priority.
One dissenting judgment came from the British representative – Sir Nicholas Bratza – who pointed out that the decision in M.S.S. went against the court’s decision a few months before allowing repatriation to Greece. Then again, precedent (one might argue principle) has never borne weightily on the minds of European judges. As it is, however, perhaps the various articles giving power to decide civil cases to a court first seised may contradict human rights law; if a contract is in English, has English law provisions, an English jurisdiction clause and all damages are in England, why wait years for an Italian court? Your human right to justice may demand an English court take it back...
Thursday, 15 September 2011
Shovelar & others v Lane & others [2011] EWCA Civ 802: costs, costs and more costs
Six claimants, seven defendants. You just know when you see that that costs will be a problem. Throw in it’s a will dispute and you’ve got emotion as well.
Facts are, as so often, simple. In 1996 a widower married a widow. In 1999 they made mutual wills. Half to the widow’s sons, the other half split between all the other descendants. In 2001 the widow died. And then in 2003 the twice-widower changed his will; he cut out the widow’s children and grandchildren entirely. Needless to say the widow’s children and grandchildren – the Shovelars – sued the executors and widower’s descendants.
Mutual wills work like this. A marries B, they have children, and they build up a portfolio of assets. A worries that if he dies B will re-marry, have more children (or worse, step-children), and A’s children will be disinherited in favour of B’s new family (I cite the precedent of Cinderella). B has the same fear if she dies first. So they make mutual wills. A’s will says the same as B’s. There is a mutuality of interest there. What it means is that when one dies, it is unconscionable for the other to change their will. It would mean that the pre-deceased’s dying wish would not be fulfilled.
And this is pretty much the scenario here; the survivor changed his will, and the court decided that he could not do that. There were mutual wills, therefore the executors had to follow the previous will. The 2003 change was nugatory. (The executors, being smart, had not paid out the estate.)
The claimants won. They asked for their costs. The judge therefore went through the procedural history.
The starting point was easy enough; the claimants had won. The defendants should pay. The executors took a fairly limited part in the action, so they got their limited costs out of the estate first.
As for the rest, the judge looked at the usual factors to see whether she should be swayed from the initial starting point. And those all worked in the claimants’ favour. They had been open to mediation from the start. They suggested a stay in the case for alternative dispute resolution. They offered a without prejudice meeting when their costs were £25k. The defendants batted it off throughout. The only time they agreed to a mediation, they said it couldn’t take place because one of them was in the Caribbean.
There were, eventually, offers of settlement. The claimants offered to take £98k plus costs (later reduced to £84k). The defendants offered a split between the wills, which would have left the defendants receiving nearly £70k with the claimants paying £25k. Only right at the end, just before trial, when the claimants had gone to considerable expense to proving their claim, did the defendants offer a split – and that was subject to each side paying their own costs. The defendants came up with 1 witness statement at trial; they hardly had any costs...
So in terms of fighting the case the claimants had done everything the court likes – made offers, suggested settlement meetings, kept the other side informed of their costs. The defendants had done sweet nothing.
And at trial the claimants had done even more. They had beaten their offers.
So the costs should have been easy. The claimants get costs – with punitive interest/indemnity rates being paid. Because they had beaten their offers.
The problem that stuck in the judge’s throat was that they were HUGE. £160k costs for a £132k estate.
And that’s just the base costs. The claimants were working under a conditional fee. So take those costs and double them. Ouchie.
So the judge looked around for ways in which she could somehow lessen the blow. Firstly, those offers. They came too soon, she said. Before exchange of evidence. Defendants could not suss out how good those offers were. So unfair to award the indemnity costs and punitive interest.
Secondly, the defendants argued that the costs should come out of the estate. It wasn’t their fault that they were brought into the action; it was as a result of the change of wills. Really this was the estate’s fault. Ergo the costs should come out of the estate.
You can see the problem with this. The successful claimants would get nothing. It would cost them the thick end of two hundred grand to be proved right. Whereas the defendants would walk away being responsible for their own, nugatory, costs. There would be no incentive for early settlement. After all, the defendants could have said “OK, you win, we won’t make our claim” on day one. Not doing so would have meant the estate went to lawyers rather than the Shovelars.
So the judge ordered that the defendants bear the costs. Other than the executors – their fees would come out of the estate. As to the level of costs? The judge said that was a matter for assessment. Not for her. But she gave a strong indication by ordering only £30k to be paid on account – normally you’d get maybe half of what you’d expect to get on assessment.
Everyone appealed. The Court of Appeal took the opportunity to make a few statements.
1. This wasn’t a question over will validity per se; it was old-fashioned litigation. The claimants took up one position, the defendants another. In these circumstances loser pays. That had to be the result here.
2. Just how limited WAS the executors’ part in the action? They filed a defence and they cross-examined the claimants. They took an active part in the litigation and did not seek an indemnity BEFORE taking action, which is what any decent trustee should do. Therefore they were a party like any other. They do NOT get an indemnity from the estate; they are just as liable for costs as the other defendants.
3. The judge should not have ruled against the claimants’ offers. They were reasonable, done at reasonable times, and the claimants had behaved reasonably throughout. They were the poster children for reasonable litigants. OK, the offers were pretty early, but every litigation has to have parties taking a view at some stage, and the defendants made no move to accept when they saw the claimants’ case in full. If these claimants did not get the full indemnity consequences, who would?
So the appeal was disastrous for the defendants. Indemnity costs, interest (at 3.5% above base), executors just as liable. Even the amount on account was bumped up to £50k.
The Court of Appeal finished with a stark warning. Ward LJ said:
“Making those orders gives no pleasure. If the claimants are right in their assessment of their costs, then, even without a success fee, the costs incurred by them exceed the sum over which battle has been joined. The great British public must think that something has gone wrong somewhere if litigation is conducted in that way. I share that sense of horror. One answer has to be to engage in mediation constructively and at the very earliest stage. ... A thousand pities that that was not done but the awful costs consequences which have followed do lie at the defendants' door.”
Make love, not war.
Facts are, as so often, simple. In 1996 a widower married a widow. In 1999 they made mutual wills. Half to the widow’s sons, the other half split between all the other descendants. In 2001 the widow died. And then in 2003 the twice-widower changed his will; he cut out the widow’s children and grandchildren entirely. Needless to say the widow’s children and grandchildren – the Shovelars – sued the executors and widower’s descendants.
Mutual wills work like this. A marries B, they have children, and they build up a portfolio of assets. A worries that if he dies B will re-marry, have more children (or worse, step-children), and A’s children will be disinherited in favour of B’s new family (I cite the precedent of Cinderella). B has the same fear if she dies first. So they make mutual wills. A’s will says the same as B’s. There is a mutuality of interest there. What it means is that when one dies, it is unconscionable for the other to change their will. It would mean that the pre-deceased’s dying wish would not be fulfilled.
And this is pretty much the scenario here; the survivor changed his will, and the court decided that he could not do that. There were mutual wills, therefore the executors had to follow the previous will. The 2003 change was nugatory. (The executors, being smart, had not paid out the estate.)
The claimants won. They asked for their costs. The judge therefore went through the procedural history.
The starting point was easy enough; the claimants had won. The defendants should pay. The executors took a fairly limited part in the action, so they got their limited costs out of the estate first.
As for the rest, the judge looked at the usual factors to see whether she should be swayed from the initial starting point. And those all worked in the claimants’ favour. They had been open to mediation from the start. They suggested a stay in the case for alternative dispute resolution. They offered a without prejudice meeting when their costs were £25k. The defendants batted it off throughout. The only time they agreed to a mediation, they said it couldn’t take place because one of them was in the Caribbean.
There were, eventually, offers of settlement. The claimants offered to take £98k plus costs (later reduced to £84k). The defendants offered a split between the wills, which would have left the defendants receiving nearly £70k with the claimants paying £25k. Only right at the end, just before trial, when the claimants had gone to considerable expense to proving their claim, did the defendants offer a split – and that was subject to each side paying their own costs. The defendants came up with 1 witness statement at trial; they hardly had any costs...
So in terms of fighting the case the claimants had done everything the court likes – made offers, suggested settlement meetings, kept the other side informed of their costs. The defendants had done sweet nothing.
And at trial the claimants had done even more. They had beaten their offers.
So the costs should have been easy. The claimants get costs – with punitive interest/indemnity rates being paid. Because they had beaten their offers.
The problem that stuck in the judge’s throat was that they were HUGE. £160k costs for a £132k estate.
And that’s just the base costs. The claimants were working under a conditional fee. So take those costs and double them. Ouchie.
So the judge looked around for ways in which she could somehow lessen the blow. Firstly, those offers. They came too soon, she said. Before exchange of evidence. Defendants could not suss out how good those offers were. So unfair to award the indemnity costs and punitive interest.
Secondly, the defendants argued that the costs should come out of the estate. It wasn’t their fault that they were brought into the action; it was as a result of the change of wills. Really this was the estate’s fault. Ergo the costs should come out of the estate.
You can see the problem with this. The successful claimants would get nothing. It would cost them the thick end of two hundred grand to be proved right. Whereas the defendants would walk away being responsible for their own, nugatory, costs. There would be no incentive for early settlement. After all, the defendants could have said “OK, you win, we won’t make our claim” on day one. Not doing so would have meant the estate went to lawyers rather than the Shovelars.
So the judge ordered that the defendants bear the costs. Other than the executors – their fees would come out of the estate. As to the level of costs? The judge said that was a matter for assessment. Not for her. But she gave a strong indication by ordering only £30k to be paid on account – normally you’d get maybe half of what you’d expect to get on assessment.
Everyone appealed. The Court of Appeal took the opportunity to make a few statements.
1. This wasn’t a question over will validity per se; it was old-fashioned litigation. The claimants took up one position, the defendants another. In these circumstances loser pays. That had to be the result here.
2. Just how limited WAS the executors’ part in the action? They filed a defence and they cross-examined the claimants. They took an active part in the litigation and did not seek an indemnity BEFORE taking action, which is what any decent trustee should do. Therefore they were a party like any other. They do NOT get an indemnity from the estate; they are just as liable for costs as the other defendants.
3. The judge should not have ruled against the claimants’ offers. They were reasonable, done at reasonable times, and the claimants had behaved reasonably throughout. They were the poster children for reasonable litigants. OK, the offers were pretty early, but every litigation has to have parties taking a view at some stage, and the defendants made no move to accept when they saw the claimants’ case in full. If these claimants did not get the full indemnity consequences, who would?
So the appeal was disastrous for the defendants. Indemnity costs, interest (at 3.5% above base), executors just as liable. Even the amount on account was bumped up to £50k.
The Court of Appeal finished with a stark warning. Ward LJ said:
“Making those orders gives no pleasure. If the claimants are right in their assessment of their costs, then, even without a success fee, the costs incurred by them exceed the sum over which battle has been joined. The great British public must think that something has gone wrong somewhere if litigation is conducted in that way. I share that sense of horror. One answer has to be to engage in mediation constructively and at the very earliest stage. ... A thousand pities that that was not done but the awful costs consequences which have followed do lie at the defendants' door.”
Make love, not war.
Saturday, 3 September 2011
Relational LLC v Hodges [2011] EWCA Civ 774: bridge across the Atlantic
There is a deep mutual suspicion between the English and American legal systems. The English courts cannot abide the punitive nature of American litigation. English damages are compensatory alone. There is no “reward” for insisting on your legal rights by way of doubling or trebling your dosh. The Americans find English law on libel unduly restrictive of free speech; the deplorably named Libel Terrorism Acts (“tourism” would have been better, but there is a breed of American that sees the two things as identical) that are finding their way through various states have the effect of barring English libel claims in the States.
The upshot is that there is no automatic recognition of judgments. I.e. you sue an American in England and win, you can’t automatically seize their American assets. You need to start again in the States, albeit with a judgment on your side as pretty powerful evidence. Similarly an American has the same problem in reverse with an English defendant.
This is what happened in the instant case. Fairly simple. Relational had a guarantee from a Florida resident, Mr Hodges, which was signed off under Illinois law. Mr Hodges seemingly legged it to Birmingham (West Midlands, not Alabama) when Relational sought to enforce the guarantee. He took a bit of tracing, and indeed claimed that he was in the boozer when the process server said they’d served him at home. The upshot was Relational scampered through to a default judgment in its favour in Illinois. Easily enforceable in the States, but Mr Hodges had no assets there. They were all in the UK.
So Relational sued in England based on their American judgment. Mr Hodges raised various defences – that he hadn’t fought the thing in Illinois (although, crucially, he did appeal), that a Florida judgment extinguished liability and so on – but the really important thing was that he sought security for costs. Given the US judgment was not enforceable in the UK, an English judgment in his favour – which would be for his costs – would not be enforceable in the US. A Mexican stand-off, to utilize a safe third country.
Relational offered to bung £25k into the English court, but the sting in the tail was that it would ask to have that set off against the amounts owed to it by Mr Hodges under the Illinois judgment. So essentially Mr Hodges could win the case, not owe the judgment in America, but would not get any benefit from winning; his legal costs would be swallowed up. Relational would just say “well, OK, we can’t enforce in England, so we’ll take it out of what we owe you.”
There’s a logic there but there’s also the point that Relational had won a legit case in a legit court. And the Court of Appeal was conscious of that. Was it really fair to make a party that had already won pay security? Wasn’t it more to protect English parties against oppressive suits, not ones that, on the face of it, had a very very good chance indeed of winning?
The Court of Appeal therefore dismissed Mr Hodges’ appeal against refusal, and made some more general comments. Longmore LJ said that it would not normally be appropriate to order security from a claimant suing to enforce a pukka foreign judgment. Because it’s up to the defendant to prove the overseas judgment was wrong; the burden of proof was reversed, and the defendant was really the claimant in those circumstances. Same would apply in cases like Mr Hodges’ case; although the Illinois court had granted a judgment without Mr Hodges’ case being considered, Mr Hodges did submit to jurisdiction by appealing. So the English courts ought not interfere too much with it.
It looks as if Mr Hodges’ best case would have been to leave the Illinois judgment untouched and not appeal at all. At least then he could deny Illinois had considered the full facts and he had never agreed to its scrutiny. But given the comments of Longmore LJ it looks to be a difficult argument – he still would have had the burden of showing the judgment was wrong, or fraudulent, or unfair. Difficult one.
The upshot is that there is no automatic recognition of judgments. I.e. you sue an American in England and win, you can’t automatically seize their American assets. You need to start again in the States, albeit with a judgment on your side as pretty powerful evidence. Similarly an American has the same problem in reverse with an English defendant.
This is what happened in the instant case. Fairly simple. Relational had a guarantee from a Florida resident, Mr Hodges, which was signed off under Illinois law. Mr Hodges seemingly legged it to Birmingham (West Midlands, not Alabama) when Relational sought to enforce the guarantee. He took a bit of tracing, and indeed claimed that he was in the boozer when the process server said they’d served him at home. The upshot was Relational scampered through to a default judgment in its favour in Illinois. Easily enforceable in the States, but Mr Hodges had no assets there. They were all in the UK.
So Relational sued in England based on their American judgment. Mr Hodges raised various defences – that he hadn’t fought the thing in Illinois (although, crucially, he did appeal), that a Florida judgment extinguished liability and so on – but the really important thing was that he sought security for costs. Given the US judgment was not enforceable in the UK, an English judgment in his favour – which would be for his costs – would not be enforceable in the US. A Mexican stand-off, to utilize a safe third country.
Relational offered to bung £25k into the English court, but the sting in the tail was that it would ask to have that set off against the amounts owed to it by Mr Hodges under the Illinois judgment. So essentially Mr Hodges could win the case, not owe the judgment in America, but would not get any benefit from winning; his legal costs would be swallowed up. Relational would just say “well, OK, we can’t enforce in England, so we’ll take it out of what we owe you.”
There’s a logic there but there’s also the point that Relational had won a legit case in a legit court. And the Court of Appeal was conscious of that. Was it really fair to make a party that had already won pay security? Wasn’t it more to protect English parties against oppressive suits, not ones that, on the face of it, had a very very good chance indeed of winning?
The Court of Appeal therefore dismissed Mr Hodges’ appeal against refusal, and made some more general comments. Longmore LJ said that it would not normally be appropriate to order security from a claimant suing to enforce a pukka foreign judgment. Because it’s up to the defendant to prove the overseas judgment was wrong; the burden of proof was reversed, and the defendant was really the claimant in those circumstances. Same would apply in cases like Mr Hodges’ case; although the Illinois court had granted a judgment without Mr Hodges’ case being considered, Mr Hodges did submit to jurisdiction by appealing. So the English courts ought not interfere too much with it.
It looks as if Mr Hodges’ best case would have been to leave the Illinois judgment untouched and not appeal at all. At least then he could deny Illinois had considered the full facts and he had never agreed to its scrutiny. But given the comments of Longmore LJ it looks to be a difficult argument – he still would have had the burden of showing the judgment was wrong, or fraudulent, or unfair. Difficult one.
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