law pages of Bournemouth and Poole College.
From 1st June 2004, in Road Traffic Accident cases, a new scheme, brought into effect by rules of court, will fix the success fee paid by a defendant’s insurer to the claimant’s solicitor or barrister where they are funded by a conditional fee agreement. For example, insurers will pay solicitors a 12.5 per cent success fee on top of their costs if they win cases that settle out of court, and a 100 per cent success fee for the riskier cases that go to trial. In employers’ liability accident cases, a similar scheme applies, but the rates can be higher.
DCA website here.
It is a commonly held perception that the United Kingdom is in the grip of “compensation culture”. Media reports and claims management companies encourage people to make claims by creating a perception, quite inaccurately, that large sums of money are easily accessible. The compensation culture is a myth; but the cost of this belief is very real. Local authorities and councils are spending a staggering amount of money each year dealing with compensation claims. Many claims are spurious. Organisations cancel events and innovation is stifled for fear of litigation. In fact, the number of claims is going down.
Task force report, here
The Lord Chancellor has announced that the QC system will remain, at least for the time being.
As Lord Chancellor and Secretary of State, he feels he should no longer play a part in assessing and selecting candidates to be appointed as QCs.
The professions (solicitors and barristers) will be responsible for selection and will send a list of suitable candidates to the DCA. The Lord Chancellor will retain responsibility for recommending as a minister to Her Majesty that she appoint those on the list to the rank of Queen’s Counsel.
In a nutshell, no major change to the system, what a surprise.
DCA details here
[Tort – damages and compensation – investment costs are not a separate head of damages]
C suffered from cerebral palsy as a result of the negligence of the defendant health authority. Damages were in excess of £2 million. C argued that because the Lord Chancellor has fixed the rate of 2.5% as the return to be expected from the investment of an award of damages for future losses, he would incur investment costs.
Held: C could not recover the costs of investment advice and fund management charges. Investment costs were an annual cost to be regarded as part of the multiplicand.
Baroness Scotland, the minister responsible for criminal law reform has admitted that any legislation on corporate killing can no longer be expected during this Parliament. This is despite reforms promised in Labour’s 1997 and 2001 manifestoes.
She ruled out a key demanded for reform; targeting individual directors. Furthermore, she indicated that any new law would not be extended to the public sector. Any such reforms would therefore be largely window dressing and would not address the concerns of the public that large corporations can ‘get away’ with killing ferry passengers and rail passengers as they have hitherto.
A ten-minute rule Bill was introduced by Frank Doran.
The Government proposes to reform the law of fraud along the lines proposed by the Law Commission report (published in 2002).
The Commission concluded that introducing a general fraud offence would improve the criminal law in several respects. It would help to make the law simpler and more easily understandable for juries, defendants and the general public (no mention of law students).
The existence of a clear definition of fraud would also help to make the prosecution process more efficient and effective. Fraud in this context includes the “deception offences”, referred to in the Theft Act 1978, and the 1996 Act, and in your syllabus.
The Law Commission report says that even the Theft (Amendment) Act 1996, remains over-specific and vulnerable to technical assaults. The current law on fraud needs to keep pace with constantly emerging techniques for fraud, particularly with rapidly changing technology.
1. The main proposal is for a general offence of fraud which can be committed in 3 different ways: by false representation, by wrongfully failing to disclose information, or by abuse of office. In each case the behaviour must be dishonest, and must aim at securing a gain for the defendant or a loss for another. But the gain does not actually have to take place, as it does under the existing statutory offences, which would be repealed.
2. New offence of obtaining services dishonestly
3. New offence of possessing equipment to commit fraud 4. Fraudulent Trading
A mathematically minded correspondent has pointed out to us that if you add up all the judges involved in the Naomi Campbell case, five judges ruled for the Daily Mirror (3 in the Court of Appeal and 2 in the Lords) and only three for Naomi Campbell. She also pointed out to us that the two Law Lords in the minority, Lords Hoffmann and Nicholls, are the two most senior Law Lords.
Still the Daily Mirror lost, tough.
[ADR – courts will ‘encourage’ appropriate use of mediation by adverse costs orders]
1. Halsey was a medical negligence case. D, the hospital where C’s husband died, allegedly because of an incorrectly fitted nasal feeding tube. D refused invitations by C to mediate, and C lost at trial.
2. Steel, was a car accident case where D refused an offer of mediation.
Held: The courts will not refuse costs to a successful party unless it was shown that the successful party acted unreasonably in refusing to agree to ADR. The normal order of costs made to the winning party (costs follow the event – crudely stated “the winner takes all”) would not apply if the successful party acted unreasonably.
To oblige truly unwilling parties to refer their disputes to mediation (the most common form of ADR) would be to impose an unacceptable obstruction on their right to access the court, and could fall foul of Article 6 of the European Convention on Human Rights, which gives citizens the right to a fair trial.
Compulsory ADR orders will not be made as to do so would make a voluntary process involuntary.
Factors the courts will take into account:
–The nature of the dispute;
–The merits of the case;
–The extent to which other settlement methods had been attempted;
–Whether the costs of the alternative dispute resolution would have been disproportionately high;
–Whether any delay in setting up and attending the alternative dispute resolution would have been prejudicial;
–Whether the alternative dispute resolution had a reasonable prospect of success.
Hurst v Leeming  approved.
[Judicial creativity – breach of confidence extended to include misuse of private information]
C, Naomi Campbell, was photographed coming out of a drug clinic. D published in the “Mirror” misleading information together with the photograph.
Held: In this country, unlike the United States of America, there is no cause of action for ‘invasion of privacy’. The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action, which became known as breach of confidence. A breach of confidence is unconscionable conduct, akin to a breach of trust. The essence of the tort is better encapsulated now as misuse of private information.
Miss Campbell’s claim was on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information. Detailed information about her treatment for drug addiction amounted to private information, which imported a duty of confidence. There was a balance to be struck between her right to private life Article 8 of the European Convention on Human Rights and Article 10 the right to freedom of information
Lord Hope; “Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell’s right to privacy that cannot be justified.”
Lady Hale: “Wainwright v Home Office  … indicates that our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.”
Whole case here
The role of the Secretary of State for the Home Department in determining when offenders should be released from prison on licence has been progressively reduced.
This case decided that the Home Secretary’s power to determine the release on licence of prisoners who were serving determinate sentences of 15 years or more was reasonable and did not contravene art 5, when read with art 14, of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Whole case here