Law Weblog

Mediation; automatic referral, pilot scheme.

1st April 2004
Central London Civil Justice Centre will house a scheme which will involve automatically referring selected civil cases to mediation.
Parties could be liable for costs if they still decline to mediate when their reasons to opt out of the scheme do not satisfy a judge.

If one or both of the parties object to mediation they would need to give their reasons. The case will be referred to a District Judge who will decide whether mediation should take place or whether the case should proceed. If one of the parties still declines to mediate, even though their reasons do not satisfy the judge, they risk being liable to costs under existing case law and Civil Procedure Rule 44.5.

If mediation is successful, the court will draw up a copy of the agreement reached, send copies to the parties and retain a copy on file. The agreement will be binding on both parties If mediation is unsuccessful or only partially successful the parties will be free to continue with court proceedings. The court will allocate the case to the fast or multi-track or order parties to complete an allocation questionnaire.

Gaca v Pirelli General plc CA [2004]

[Tort – damages and compensation – deduction – payments from group insurance deductible from damages]
D employed C who was seriously injured in an accident at work. Whilst C was off work he received payments form a group insurance scheme. Following the termination of his employment he received an ill health gratuity payment from the defendant and a payment under the insurance policy for ‘permanent total disability’. C claimed damages for personal injury.

Held: There was a fundamental difference between a payment made by an employer to his employee to compensate him for the consequences of injuries suffered in an accident, and a payment made to a victim of an accident by a third party out of sympathy for his or her plight. The instant case did not come within the ‘benevolence exception’ because the payments had been made by the tortfeasor, and the payment of benefits under the insurance policy was not equivalent, or analogous, to payments made by third parties out of sympathy.

D won

AB v Leeds Teaching Hospital NHS Trust [2004]

[Negligence – duty of care medical practitioner removing and retaining organs from child’s body owed a duty of care to the parents]
D the hospitals that had retained tissue from the bodies of deceased children taken at or after post-mortem without the knowledge or consent of the parents The claimants were three lead claimants in group litigation. In each case, they consented to the carrying out of a post mortem, but were not informed in detail of the procedure or that organs might be removed and retained. Where organs had been retained, they were often treated in some way so as to preserve them.

Held: In the case of a doctor treating a mother who had had a child which had died, the doctor would have a duty to advise the mother about future pregnancies. That duty extended to giving the parents an explanation of the purpose of the post mortem and what it involved, including alerting them to the fact that organs might be retained.

Domestic violence proposals for reform

March 2004, the Lord Chancellor, Lord Falconer delivered a speech at the Barbican Centre outlining proposals for reform.

“There are an estimated 600,000 incidents of domestic violence each year. But at the same time, it’s estimated that there are only 7,000 criminal prosecutions.”
“Other estimates suggest that 95 per cent of victims suffer for more than 6 months before seeking help and around half suffer for more than 5 years.”
“Women on average are attacked 35 times before they seek help against the perpetrators of domestic violence. And two women are killed every week in domestic violence incidents.”
“And yet only 19,000 victims of domestic violence are seeking non-molestation orders or occupation orders through the civil courts.”

He proposes changes to the law some of which are:

*improving the law on non-molestation orders
*making common assault an arrestable offence
*sentencing changes including manslaughter by reason of provocation, particularly in domestic settings

Full speech here

Department of Economic Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] CA

[ADR – arbitration award judgment should remain private]
The parties were involved in arbitration under UNICTRAL rules in London. The arbitration took place in private and the award was published only to the parties. The judgment was not marked private and the publishing company Lawtel received a copy of the judgment, which in good faith it summarised on its website and by email to its 15,000 subscribers.

Held: The full text of the judgment could be published. Even though the hearing might have been in private, the judgment should be given in public where that could be done without disclosing significant confidential information; there has to be a balance.

Smith, R v (Wallace Duncan) (No 4) [2004] CA

Deception – s1 TA 1978 – deception can be anywhere in the world]
D a Canadian working from the UK set up various bogus deals.  A “repo” a type of lending occurred in New York, and so D alleged the UK courts had no jurisdiction.

Held: A court could try an offence of obtaining services by deception where the obtaining took place outside the jurisdiction but a substantial part of the deception took place within the jurisdiction, provided that there was no reason of international comity why the court should not do so.

It would undermine the inherent nature of the common law if courts were prevented as a matter of principle from developing the law to meet the needs of contemporary society in the present situation.

Guilty (of substituted offence of s1 TA 1978 )

R (Middleton) v West Somerset Coroner and another [2004] HL

[Juries – coroners’ juries must give reasons for verdicts]
Colin Middleton aged 31 died at Bristol Prison. A jury and the coroner both felt that there were “significant deficiencies” in the care given by the Prison Service, who was not placed on suicide watch despite signs of possible self-harm. The Coroner was passed a note by the jury which raised a number of their concerns about the practices adopted by the prison authorities. The family’s lawyers later asked for the jury’s note to be incorporated into the verdict, which was otherwise to be recorded simply as the taking of his own life while the balance of his mind was disturbed.

Held: A jury’s remit to decide the question of “how” a prisoner died under the Coroners Act 1988 should be extended to “by what means and in what circumstances” if the jurors wished to express concern about the circumstances of a death. That might be done by inviting a form of verdict expanded beyond those suggested in the model form; or by inviting a narrative form of verdict in which the jury’s factual conclusions were briefly summarised; or by inviting the jury’s answer to factual questions put by the coroner. It would be open to parties to make submissions to the coroner on the means of eliciting the jury’s factual conclusions and on any questions to be put, but the choice had to be the coroner’s and the courts should not disturb his decision unless strong grounds were shown. Acts or omissions might be recorded, but expressions suggestive of civil liability, in particular “neglect” or “carelessness” and related expressions, were to be avoided. Self-neglect and neglect should continue to be treated as terms of art.

It is believed that this is the first case about the role of the Coroners’ Court to come before the House of Lords in 100 years. The campaigning group Inquest described it as “a major breakthrough”.

ADR – CEDR announce rise in Mediation

Mediations increased by more than a third in the last year, according to new figures published by the largest provider, CEDR Solve, the dispute resolution service for the Centre for Effective Dispute Resolution.
Dunnett v Railtrack 2002 is one factor in the growth of popularity of mediation (Railtrack was not awarded costs because it had refused the horse owner’s offer to mediate), another factor is the advice given by Mr Justice Colman in Cable & Wireless v IBM (2002), who said it had become common for judges to make alternative dispute resolution orders.
In 1998 there were only 250 mediations rising to 631 in 2003. Nearly all – 94% – of mediations were heard in just one day. Three quarters of mediations reached settlement.

“Mother of all Ouster Clauses” removed from asylum Bill.

Tonight the government has backed down on the “ouster clause” in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. The clause threatened a constitutional conflict between the government and the judiciary. Lord Woolf had expressed his displeasure in a speech at Cambridge last week; the proposals had been widely condemned.

“I am prepared … to replace the judicial review ouster with a new system allowing oversight by the administrative court in those decisions,” said Lord Falconer.

News report here

Human Rights Act is not retrospective

Re: McKerr [2004] HL
[Statutory interpretation – presumptions – legislation is not generally retrospective – HRA not retrospective]
The latest decision by the Law Lords in respect of the alleged shoot to kill policy that allegedly operated in Northern Ireland. This alleged policy was investigated both by John Stalker and Colin Sampson. The applicant in this case sought amongst other things a declaration that the failure by the government to hold an Article 2 compliant investigation was unlawful. Article 2 of the Convention concerns the right to life and The European Court of Human Rights has held that by implication article 2 also requires there should be some form of effective official investigation when individuals have been killed as a result of the use of force the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death.

Held: The deaths relating to this action occurred 20 years before the Act came into force. The government’s failure to hold an effective official investigation into a violent death caused by a police officer had not breached the Human Rights Act 1998 s. 6(1) since the Act was not retrospective and created no right to investigate deaths which had occurred before its implementation.

Whole case here