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Pearl Willis
Barrister At Law
Northampton Chambers
I am unable to offer advice on individual cases.
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The contents of these pages are provided as an information guide only.There are no representations made as to the contents of these pages. No responsibility is accepted by or on behalf of Pearl Willis for any errors,omissions, or misleading statements on these pages or any sites to which these pages connect,including any feature or aspect of such site or pages, whether provided by Pearl Willis or by any organisation, company or individual. The contents of these pages do not represent legal advice in any form and anyone relying on information provided by theses pages do so at their own risk. No mention of any organisation, company or individual, whether on these pages or on other sites to which these pages are linked shall imply any approval or warranty as to the standing and capability of any such organisations,company or individual.
This site was last update in October 2006
The Times 10 October 2006,
Procedure when relying on low impact collision defence
CA
Casey v Cartwright.
Before Lord Justice Keene, Lord Justice Dyson and Lady Justice Hallett. Judgment October 5, 2006
IN LOW impact traffic collisions, a defendant who wished to contend that the force of impact was not enough to cause injury should comply with certain formalities before being allowed to bring in expert evidence on the point.
The Court of Appeal decision in Kearsley v Klarfeld ((2006) 2 All ER 303) had been intended to provide such guidance, at any rate pending authoritative guidance in some test cases before a High Court judge.
The desirability for such test cases stemmed from the fact that the potential for low velocity impact to cause injury was controversial.
Experience in practice showed that the guidance in Kearsley needed amplification, although the decision on management of any particular case was ultimately a matter for the court.
The question whether expert medical evidence on causation should be admitted arose only where the defendant contended that the nature of the impact was such that it was impossible or very unlikely that the claimant suffered any injury or any more than trivial injury as a result of the collision and that accordingly the claim was fabricated.
If a defendant wished to raise that issue he should within three months of the letter of claim notify all other parties in writing that he intended to do so. The issue should be expressly identified in the defence, supported in the usual way by a statement of truth.
Within 21 days of serving a defence raising the causation issue, the defendant should serve on the court and the other parties a witness statement identifying the grounds on which the issue was raised.
On receipt of the witness statement, the court would, if satisfied that the issue had been properly identified and raised, generally give permission for the claimant to be examined by the defendant's medical expert.
If the medical evidence showed that the defendant had a real prospect of success on the causation issue, the court would generally give the defendant permission to rely on it at trial. However, permission might be refused if the overriding objective required it.
It would generally be refused if the issue was not raised within three months of the original claim or if there was a factual dispute whose resolution was likely to resolve the causation issue, so that the expert evidence would serve little purpose.
Permission could also be refused where the injury alleged and the damages claimed were disproportionately small compared with the extent and complexity of the expert evidence.
Judges should be slow to direct the use of single joint experts, at least until some test cases had been decided at High Court level, because the causation issue was controversial.
*
Victim fails to overturn bar on claim against lottery-win rapist
Riazat Butt
Thursday April 13, 2006
The Guardian
A victim of a rapist who won more than £7m on the lottery has failed to overturn a high court ruling barring her damages claim against him.
Three high court judges have ruled that the 77-year-old former teacher, known as Mrs A, cannot not seek compensation from H because her claim was bought more than six years after the assault happened.
H attempted to rape Mrs A, then aged 59, in Roundhay Park, Leeds, in February 1988. She was his seventh victim. Sentencing him to life imprisonment in 1989, Mr Justice Rougier told H: "For every moment you are at liberty some woman is at risk."
H was on day release from an open prison in Gloucestershire in 2004 when he bought the lottery ticket.
At the appeal hearing, Mrs A's counsel, Alan Newman QC, said H had no money or property before his windfall so Mrs A had decided it was "neither sensible nor proportionate" to take civil action against him. She issued a civil action in December 2004 after learning of H's win and obtained medical reports on the psychiatric injuries she had suffered since the assault.
But in October 2005 Mr Justice Jack upheld a decision by a senior high court official, Master Eyre, that her claim should be struck out as it was made more than six years after the assault.
Mrs A was told that she could not rely on the Human Rights Act for help because the six-year period had ended before the act came into existence. She challenged the court's decision in February, claiming it was a denial of her human rights.
The claim was one of three test cases to highlight the strict six-year time limit for launching compensation claims for deliberate assaults.
The clock starts to run when the act happens, or at 18 if the victim is a child. It contrasts with a three-year limit for suing over negligent acts, which starts to run when the victim knew or should have known of the facts giving rise to the claim.
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See you in court... or maybe we could just talk about this
Mediation is the smart way to settle disputes that can otherwise involve
the expense and stress of going to law, says Jon Robins
Sunday October 30, 2005
The Observer
'The problem with going through the courts is that one minute you're having
a chat with your lawyers and next minute it's pistols at dawn,' says 37-year-old
Steve, a Manchester businessman.
Steve used to rent a friend's house. However, he refused to pay for a property
that he describes as 'a bomb site, just shocking'. Fifteen years' friendship
evaporated overnight when he opened an envelope to discover it contained
a county court summons for £800 for the outstanding rent.
'I was staggered because I couldn't believe it had come to this,' he recalls.
'She was using the legal process like most people change their socks. If
she had behaved like a landlady and done her duty, I'd have paid.' It was,
as Steve readily admits, an argument over a trivial amount of money with
a dangerous potential to grow out of control.
At the time Steve was spending every minute setting up a new marketing business.
'I took it badly and couldn't let her get away with it,' he says. Fortunately,
this snowballing dispute was intercepted by a court-appointed mediator as
part of a pilot mediation service being run by Manchester County Court. Under
the scheme, appropriate claims are directed to a free mediation service when
a court-summons is filed. The former friends were contacted by the mediation
service and invited to see if they could resolve their grievances.
The session took less than 15 minutes as they sat in separate rooms only
communicating via a qualified mediator. Steve offered to pay £800 to a breast
cancer charity or £200 directly to her in final settlement of the claim.
She agreed to the charitable donation.
'In a way it was farcical because she didn't win, so what was all the fuss
about?' he says now. 'But the point was that mediation worked because it
kept a dispute between two old mates out of the courts, which would have
been absurd.'
This week is national Mediation Awareness week and the government is hosting
some 100 events across Britain aimed at encouraging people to settle disputes
before they reach the courtroom door. Mediation is an out-of-court process
by which you and your opponent in a dispute decide the terms of settlement.
The process is voluntary, so you cannot be forced to take part and can withdraw
at any time. The idea is that mediators avoid taking sides but are simply
responsible for keeping both sides talking. Once a settlement has been reached,
a mediation agreement can be drawn up.
If you perhaps have noisy neighbours, have been ripped off by cowboy builders,
or are owed money, then the government is offering a special one-off £93
mediation deal that could be the answer. Until the end of next week, mediations
arranged through the national helpline will receive a 25 per cent discount
on the normal mediation fee.
Fees vary, but the Department of Constitutional Affairs reckons that claims
for less than £5,000 should cost £125 per party for two hours' mediation,
and £250 each for claims between £5,000 and £15,000 for three hours.
If you are not covered by court-based schemes, you could try the government's
new National Mediation Helpline (0845 60 30 809, or see www.nationalmediationhelpline.com),
which will put you in touch with independent providers.
'Too often taking cases through court can be a disruptive, time-consuming
and stressful process,' said parliamentary under-secretary of state Baroness
Ashton at the start of the week.
'Mediation provides a less hostile and intimidating environment in which
to resolve disputes and can help those involved to understand the issues
and find solutions that everyone agrees on.'
While the reasons to give the courts a wide berth are compelling and obvious,
mediation still remains very much a fringe activity. In the past 12 months
the National Mediation Helpline has received just over 1,700 calls, leading
to 472 referrals and only 59 mediations. But the process works: 46 of those
cases have settled, and only 10 have either failed to settle or cancelled.
'People come into the court system with absolutely no idea about legal matters
and often think the courts are the only way they can solve things,' says
James Rustidge, civil mediation officer at Manchester County Court, who dealt
with Steve's claim.
The Manchester scheme is completely free. Since starting in July, Rustidge
has mediated 17 cases, with 13 having been settled successfully, which, he
says, is 'a pretty good strike rate'.
While going through the courts tend to leave all sides bruised and battered,
by its very nature mediation is a consensual process. One of the larger commercial
providers, the ADR Group, says: 'About 72 per cent settle on the day and
10 per cent a couple of weeks after.' However, the ADR Group only undertook
350 mediations last year and the biggest provider, the Centre for Effective
Dispute Resolution, completed just 700.
'People have been indoctrinated into thinking that if you start a legal action
there has to be an ending with a judge or a magistrate and there has to be
a winner and a loser,' Rustidge argues. 'In mediation you're trying to get
to a situation which isn't about winners and losers but about both parties
coming to an agreement they can both live with.'
The Consumer Association is supportive of the government's drive to boost
mediation's profile. 'There is a huge amount of consumer protection law but,
whatever that law says, you still have to argue your legal point to end up
with compensation in court,' says Keith Richards, the author of 450 Legal
Problems Solved, published by Which?.
'That isn't always what people want. Disputes can be about relationships,
rebuilding confidence and getting more out of a relationship than simply
money. Mediation provides the perfect way of doing just that.' So what cases
are suitable for mediation? The small claims court is the no-thrills county
court procedure for claims under the £5,000 mark.
Richards is not convinced that there is much to choose between that jurisdiction
and a mediated solution.
'The majority of those cases are fairly simple low-level disputes between,
for example, one person and a business, and they end up in court because
one side or the other doesn't see eye to eye,' he says. 'I'd question whether
sitting around a mediation table is going make them happy.'
But for claims over £5,000 there is the added deterrent of having to pay
the other side's legal costs. 'The courts should be seen as the very last
resort, and mediation seems a sensible way to sort problems out,' Richards
adds.
· Names have been changed in this article.
The Guardian July 2005
A law student has won a groundbreaking victory over the penalty charges levied by banks when customers go overdrawn or are late with payments.
Stephen Hone, 29, from Plymouth, took Abbey to court claiming that the bank's £32 penalty charge for bouncing a direct debit was unfair, as it was disproportionate to the costs incurred by the bank.
Mr Hone, a father of three, is now expected to be awarded hundreds of pounds in compensation. In his claim entered at Plymouth County Court in Devon, Mr Hone said he had been charged a total of £2,000 over six years.
He wrote: "Your charges do not reflect any actual or real loss, instead they appear to represent a lucrative profit-making scheme."
He added that the £32 charge was simply a "moneyspinner" for the bank, whose only cost was in generating an automatic letter.
Abbey failed to file a defence because it says it was not notified of the court date. So the district judge, Andrew Moon, had no option but to find in Mr Hone's favour. He made a court order requiring Abbey to pay Mr Hone compensation plus costs, with the exact figure to be decided at a later date.
So, does this ruling mean that customers of banks no longer have to pay these punitive penalties? The picture is, at best, fuzzy.
Abbey immediately issued a statement saying: "This ruling does not set a precedent. We are applying to the court to have the judgment set aside. The charges we impose are legitimate and proportionate to the administrative costs incurred by the bank for situations such as direct debits."
Jobs & Money was the first paper to highlight the potential illegality of penalty charges imposed by the banks. Richard Colbey, a barrister who writes regularly for Jobs & Money, told readers in August last year that late payment penalties may be legally unenforceable. He said: "Such charges are unlikely to be enforced by the courts: penalty clauses are legally void unless they reflect the loss the party enforcing them has suffered."
A lively correspondence followed in the letters pages of Jobs & Money, with stories of banks that backed down, and others that resisted.
So what does Mr Colbey say now? Here is his latest opinion:
"Claims against the Yorkshire Bank and the Alliance & Leicester have resulted in complete capitulation by the banks, while the NatWest and Lloyds TSB have been more robust in defending their position.
The gist of what we said was that, as the charges are intended to penalise customers who overdraw in breach of contract, they are penalty clauses. Such clauses, under a century-old doctrine, are void even if written into a contract.
"This argument was validated by, perhaps somewhat naive, bank press officers stating the charges are designed as a way to deter or penalise unauthorised borrowing.
"The penalty clause argument, however, depends on the customer breaching the contract. Some banks frame charging clauses so that an 'unauthorised' overdraft may be permitted by the bank at a specified price. As the customer has effectively requested the facility and the bank agreed to it, there is no breach and hence no penalty charge.
"There would, however, potentially be a penalty clause if the bank had to pay the money which led to the unauthorised borrowing, for instance because a cheque guarantee card had been used or if the bank refused the payment.
"Mr Hone argued his case both on the basis of penalty clauses and the Unfair Terms in Consumer Contracts Regulations. These Regulations apply where a consumer, who fails to fulfil an obligation, is required to pay disproportionately high compensation.
"The £2,000 Mr Hone had to pay over six years seems disproportionate to the standard letters the Abbey had sent, and as the charges were mainly for refusing direct debits he was in breach. It may be that the courts will interpret the Regulations more widely than the penalty clause doctrine.
"Although it is always easier to win a case when the other side is not there, the judge still considered the merits of both sides' cases before deciding for Mr Hone. He even adjourned the hearing to give the Abbey an opportunity to be heard on how much it has to repay.
"Customers who want to reclaim such sums through a small claim in the county court should rely on both the Regulations and the penalty clause argument.
"Sometimes, though, the most effective way to counter disputed charges is to refuse to pay them. While banks may feel honour bound to defend legal proceedings brought against them, they rarely sue for disputed sums.
"Customers can close accounts leaving the charges outstanding and tell the bank's legal department it will be sued for libel if it reports them to credit reference agencies. That should be enough to have the charges written off as 'a goodwill gesture'."
DHL Air Ltd v Wells
The Times 14/11/03
In a case in the county court where the sums claimed were relatively small and the costs incurred relatively large, the judge in acceding to a request for a split trial failed to give proper consideration to proportionality, thereby acting contrary to the spirit of the Civil Procedure Rules.
The Court of Appeal (Lord Justice Ward, Lord Justice Scott Baker and Lord Justice Thomas) so stated on November 7, 2003 when reversing the decision of Judge Critchlow sitting Reading County Court on April 3, 2003 when hearing over the course of a day issues as to liability only in an action brought by the claimant, DHL Air Ltd, to recover sums from the defendant, Alexander Wells.
LORD JUSTICE THOMAS said that the amount of the claim was in the region of £13,000. The claimant's costs exceeded £20,000 and the defendant's costs of the appeal alone were some £4,000.
It was difficult to understand how such a case had not been dealt with by the judge within the spirit of the Civil Procedure Rules.
It was a pity that he had not taken a more modern view and, having ascertained what the issues were, proceeded to deal with the case, as to both liability and quantum, in a more economical way.
Con men stage fake accidents to claim damages.
http://www.telegraph.co.uk/money/main.jhtml?xml=/money/2003/11/12/cmcar12.xml
Cooper v Floor Cleaning Machines Ltd and another Judge's job at trial is to make a judgment The Times 24/10/03 summary at http://www.lawreports.co.uk/civoctd0.9.htm . ....The judge, having heard evidence from both motorists and finding that neither was to be disbelieved, had said that in the incredible circumstances unless he was going "to toss a coin" the only fair decision he could reach was to conclude that on the balance of probabilities neither had discharged the onus of proving negligence against the other. The judge had reached his decision and given judgment without consulting counsel, which was imprudent since counsel might have dissuaded him from concluding as he had.....The judge had made primary findings of fact and the court was in as good a position as the judge to reach the appropriate conclusion on the issue of liability
ROYAL BANK OF SCOTLAND PLC (RESPONDENTS) v ETRIDGE
DISCLAIMER
The contents of these pages are provided as an information guide only. There are no representations made as to the contents of these pages. No responsibility is accepted by or on behalf of Pearl Willis for any errors,omissions, or misleading statements on these pages or any sites to which these pages connect,including any feature or aspect of such site or pages, whether provided by Pearl Willis or by any organisation, company or individual. The contents of these pages do not represent legal advice in any form and anyone relying on information provided by theses pages do so at their own risk. No mention of any organisation, company or individual, whether on these pages or on other sites to which these pages are linked shall imply any approval or warranty as to the standing and capability of any such organisations, company or individual.
April 05, 2002
The Times
Law Report
Proportionality principle in costs
COURT OF APPEAL
Lownds v Secretary of State for the Home Department
Before Lord Woolf, Lord Chief Justice, Lord Justice Laws and Lord Justice Dyson
Judgment March 21, 2002
Courts must attach the appropriate significance to the requirement of proportionality when making orders for costs and when assessing costs.
If a party's costs as a whole appeared disproportionate, the court would need to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item was reasonable.
The proportionality of the costs that a party had incurred should be decided having regard to the sum that it was reasonable for him to believe might be recovered in the action.
The Court of Appeal so stated in a reserved judgment when dismissing an appeal by the defendant, the Secretary of State for the Home Department, against the upholding by Judge Lightfoot at Leeds County Court on July 10, 2001 of an assessment of costs totalling £16,784 made by District Judge Bellamy on January 26, 2001 following settlement of a clinical negligence action by the claimant, Karl Edward Lownds, a prisoner, for £3,000.
Mr Alexander Hutton and Mr Mark Friston for the Home Secretary; Mr Graham Robinson for the claimant.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the appeal raised issues of principle which had a direct bearing on the policy, on which the effectiveness of the Civil Procedure Rules depended, that litigation should be conducted in a proportionate manner and, where possible, at a proportionate cost.
Under those rules the court would not allow the recovery of costs which had been unreasonably incurred or were unreasonable in amount and, on an assessment on the standard basis, the court would allow only costs which were proportionate.
It was essential that courts attached the appropriate significance to the requirement of proportionality when making orders for costs and when assessing costs.
The reference in paragraph 11.2 of the Part 44 practice direction in Civil Procedure to costs "which are necessary" was the key to how judges in assessing costs should give effect to that requirement.
If the appropriate conduct of the proceedings made costs necessary then the requirement of proportionality did not prevent all the costs being recovered.
What was required was a two-stage approach. There had to be a global approach and an item-by-item approach.
The global approach would indicate whether the total sum claimed was or appeared to be disproportionate having particular regard to the considerations in rule 44.5(3) of the Civil Procedure Rules.
If the costs as a whole were not disproportionate according to that test then all that was normally required was that each item should have been reasonably incurred and the cost for that item should be reasonable.
If on the other hand the costs as a whole appeared disproportionate then the court would want to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item was reasonable.
If, because of lack of planning or due to other causes, the global costs were disproportionately high, no more should be payable than would have been payable if the litigation had been conducted in a proportionate manner.
That in turn meant that reasonable costs would be recovered only for the items which were necessary if the litigation had been conducted in a proportionate manner.
In a case where proportionality was likely to be an issue, a preliminary judgment as to the proportionality of the costs as a whole was to be made at the outset.
Regard would be had to whether the appropriate level of fee earner or counsel had been deployed, whether offers to settle had been made, whether unnecessary experts had been instructed and the other matters set out in rule 44.5(3).
Once a decision was reached as to proportionality, the judge would be able to proceed to consider the costs, item by item, applying the appropriate test to each item.
A sensible standard of necessity had to be adopted which took fully into account the need to make allowances for the different judgments which those responsible for litigation could sensibly come to as to what was required. The danger of setting too high a standard with the benefit of hindsight had to be avoided.
While the threshold required to meet necessity was higher than that of reasonableness, it was still a standard that a competent practitioner should be able to achieve without undue difficulty.
In deciding what was necessary, the other party's conduct was highly relevant. The other party by cooperation could reduce costs, by being uncooperative he could increase costs.
If he was uncooperative that might render necessary costs which would otherwise be unnecessary and that he should pay those costs was perfectly acceptable.
Whether the costs incurred were proportionate should be decided having regard to what it was reasonable for the party in question to believe might be recovered.
Thus the proportionality of the costs incurred by the claimant should be determined having regard to the sum that it was reasonable for him to believe that he might recover at the time he made his claim.
The proportionality of the costs incurred by the defendant should be determined having regard to the sum that it was reasonable for him to believe that the claimant might recover, should his claim succeed.
That was likely to be the amount that the claimant had claimed, for a defendant would normally be entitled to take a claim at its face value.
The rationale for that approach was that a claimant should be allowed to incur the cost necessary to pursue a reasonable claim but not allowed to recover costs increased or incurred by putting forward an exaggerated claim and a defendant should not be prejudiced if he assumed the claim which was made was one which was reasonable and incurred costs in contesting the claim on that assumption.
The approach required by the rules should help to ensure that costs were kept within proper bounds. It would also underline the advantages to a claimant, before embarking on litigation, of making a formal offer to settle which would avoid the risks of litigation if the offer was accepted or provide a real prospect of obtaining an indemnity order for costs if the offer was rejected.
The court did not consider that the guidance it had provided should be applied retrospectively to cases in which costs had already been assessed.
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