How mad must you be, not to be responsible for your actions?

1a45b808-20f6-11e5-_934669cDunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment

This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.

Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.

You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.

You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.

The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?

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Supreme Court: the common law working out illegality defence

_41773060_mtic_carousel416x302Jetivia v. Bilta [2015] UKSC 23, 22 April 2015 – read judgment

Nigel Farage is quoted yesterday as preferring immigrants to be Australians and Indians rather than EU citizens, because they probably speak English and “understand common law.” 

Nice coincidence, then, that on the same day the Supreme Court came out with a perfect illustration of the potential difficulties of the common law process. This is the latest (but unlikely to be the last) instalment from the Court going to the question as to whether some crime by a claimant ought to stop his claim in its tracks.

The issue is well demonstrated by this claim, in effect a carousel fraud (see pic and see my post here), in which a company the victim of a fraud seeks to recoup losses from the fraudsters and is met with the argument – but your directors were in on the fraud too. How does the law deal with this?

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Car crash Euro-damages against government upheld by CA

weed_2929857bDelaney v. Secretary of State for Transport, Court of Appeal, 9 March 2015 – read judgment 

The Court of Appeal has recently upheld the decision of Jay J here that a drug-dealer was entitled to compensation against the Government for injuries in a car accident, even though at the time he and the negligent driver both had drugs on them. 

The Government was involved because the driver’s insurance was invalidated because of his cannabis use, and because the Government had not made provision for these liabilities to be picked up by either by insurers or the Motor Insurers Bureau (MIB), as it should have done under EU Law.

Mr Delaney therefore recovered state liability damages – which lawyers know as Francovich damages – from the Government.

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No entitlement to human rights damages after ‘caste discrimination’ case collapse

Photo via Guardian.co.uk

Photo via Guardian.co.uk

Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment

Adam Wagner acted for the Secretary of State in this case. He is not the author of  this post.

The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.

The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights.  Continue reading

Supreme Court says Welsh NHS charges Bill in breach of A1P1

Asbestos-588x340Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here

Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example. 

The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.

In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly.  Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.
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Article 2 and combat immunity – where next after Al-Skeini and Susan Smith?

British_soldier_during_Operation_Desert_ShieldR(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment

When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.

This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].

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Supreme Court revises confiscation order via A1P1

_41773060_mtic_carousel416x302R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment

A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.

The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud.  A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.

In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.

In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.

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