Category: Damages

Successful A1PI claim in construction adjudication – lessons for us all

16 April 2013 by David Hart KC

Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment

One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.

The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.

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Damages for death and human rights

18 March 2013 by David Hart KC

Swift v. Secretary of State for Justice, Court of Appeal, 18 February 2013 – read judgment – on appeal from Eady J, read judgment and my previous post

Ms Swift lost her live-in partner in an accident at work caused by negligence. She was pregnant with her partner’s child, but had only been living with him for 6 months. Had she been with him for 2 years, she could have claimed damages for his death under section 1(3) of the Fatal Accidents Act – set out at [1] of the CA judgment. She would then have been a “dependant” as defined under the FAA. So she argued that her rights under Articles 8 (family) and 14 (discrimination) of the ECHR were not properly respected by the law governing damages for the death of a relative – there was no justification for this stark cut-off – 1 year 11 months no claim, 2 years a claim. The judge refused to grant a declaration of incompatibility between the ECHR and the Fatal Accidents Act, and the Court of Appeal has just upheld his decision.

A lot of money turned on the point:  Had she qualified as a dependant, she would have had a claim for about £400,000.

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Chakrabarti debates Clarke on secret courts bill

7 March 2013 by Isabel McArdle

The Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

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European Court awards damages to prisoner after Parole Board backlog

15 February 2013 by Amy Mannion

BETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD [2013] ECHR 97 – Read judgment

On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’.  The media furore, at varying degrees of accuracy, here and here.

The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress.  In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003).   The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review.  However, damages could meet the ‘frustration’ he had been caused.

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Judging people – and a case about a Porsche 917

23 January 2013 by David Hart KC

Piper v. Hales, HHJ Simon Brown QC, 18 January 2013 read judgment

Two types of readers may be interested in this case; the first, who are interested in the age-old judging problem of whom to believe when faced with a conflict of evidence, and the second (and I don’t want to do any gender-stereotyping) those who are fascinated in whether a replica Porsche 917 (think Steve McQueen in Le Mans) over-revved and blew because (a) it had a gearbox fault or (b) the Defendant driver missed a gear.

I will disappoint the second set of readers – but the judgment is short and well-written, so, chaps, read it for yourselves  to find out why the gearbox was acquitted of all charges laid against it.

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Human rights claims against undercover police to be heard in secret – Simon McKay

18 January 2013 by Guest Contributor

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

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Priests are not press meat, says Strasbourg

5 December 2012 by Rosalind English

Verlagsruppe News Gmbh and Bobi v Austria (Application no. 59631/09) HEJUD [2012] ECHR 2012 (04 December 2012)

Hard on the heels of the Facebook case, here is another legal dust up over the media’s sharp interest in any story involving allegations of inappropriate sexual relations, particularly in the Catholic church.

Following a police investigation into internet downloads, the principal of a Roman Catholic seminary in Austria became the target of unwelcome interest from the tabloid press, including the second applicant, who published a series of articles and photographs alleging that  Mr Küchl was engaging in homosexual relations with the seminarians. One article identified the seminarian principal, whose face was clearly identifiable from the accompanying photograph. The article was entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”
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Secret Courts remixed: any better than the original? – Angela Patrick

26 November 2012 by Guest Contributor

This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.

As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.

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Iraq soldier families can bring negligence but not human rights claims – Robert Kellar

9 November 2012 by Guest Contributor

Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 – Read judgment

Updated – the first two paragraphs of this post have been amended as they were factually inaccurate. Many apologies for this.

Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’.  The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied. 

The case concerned claims brought by the families of five men killed or injured in south-east Iraq.  Corporal Allbutt was killed and Troopers Twiddy and Julien injured in Challenger II tanks in fratricide, or ‘friendly fire’, incidents on 25 March 2003.  Privates Hewett and Ellis and Lance Corporal Redpath were killed in their Snatch Land Rovers by improvised explosive devices (IEDs) on 16 July 2005, 28 February 2006 and 9 August 2007 respectively (the ‘Snatch Landrover claims’).

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Ask and you shall receive – finally, an English translation of the Rachel Corrie judgment

18 October 2012 by Adam Wagner

Last month I posted on the troubling case of Rachel Corrie, a 23-year-old protester killed by an Israeli military bulldozer in 2003. In August, an Israeli court ruled that the Israeli Defence Ministry bore no responsibility in civil law for her death.

I complained that the reporting of the ruling had been poor, despite a reasonably good summary in English produced by the court. One of the main problems undoubtedly was the lack of an English translation of the 73-page Hebrew ruling. Until now, that is. Through the magic of the internet – and a huge amount of work – Irène Solomon, a legal advisor at Ofgem and reader of this blog, has translated the judgment from Hebrew into English. She has taken on this mammoth task for free in her personal capacity and has given me permission to publish her work online as a UKHRB exclusive.

You can download the translation here (PDF) and it is also reproduced after the break below. I should emphasise that this is not an official translation, but it does appear to me to be a very good effort indeed.

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Why is the Law of Fire like a student fridge?

6 October 2012 by David Hart KC

Stannard (t/a Wyvern Tyres) v. Gore, Court of Appeal, 4 October 2012 read judgment

The best part of a thousand years of law has been distilled into this scholarly resolution by the CA of an age old problem. Who pays for the consequences of an accidentally caused fire – the landowner where the fire started or the neighbour who suffered the loss?  

The case is a good illustration of the dangers of the incremental development of our judge-made common law – under scrutiny from time to time from Strasbourg for its lack of precision or unjustness in its wilder reaches, but which has generally passed muster from the European Court of Human Rights: see here or the famous Sunday Times thalidomide case on the then common law of contempt.

Much of the law of civil wrongs (lawyers call it tort) is decided by judges on a case by case basis. When this has gone for too long, the law gets all thickety, dominated by a lot of one-off decisions driven by their specific facts, and where the judge don’t necessarily have their eyes on the wider picture. And these decisions can get way out of date anyway. It is a bit like a student fridge – people rarely clean it out and start again. Changing the metaphor, the law is then in need of a bit of slash-and-burn, and the Law of Fire got that pretty effectively from the CA last week.

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A bluffer’s guide to human rights courts

10 September 2012 by David Hart KC

Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.

If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.

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When human rights hit the private law of damages for death

24 July 2012 by David Hart KC

Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment

This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?

Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via  s.3 of the Human Rights Act  (to make the FAA  rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.

So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.

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Church has employer’s duty of liability for parish priests

16 July 2012 by Rosalind English

JEG v  The Trustees of the Portsmouth Roman Catholic Diocesan  [2012] EWCA Civ 938

Elizabeth Anne-Gumbel QCand Justin Levinson of One Crown Office Row acted for the claimant in this case. They did not write this post.

The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.

This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan – see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts.
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The Erika: Cour de Cassation has its thinking cap on

29 May 2012 by David Hart KC

I posted recently on the continuing legal see-saw in France arising from the prosecution of Total and other parties for their responsibility for the loss of the Erika on 12 December 1999. The Erika sank off the Brittany coast, spilling some 20,000 tonnes of heavy fuel oil, polluting  some 400 km of the French coastline, and killing this poor guillemot, amongst many.

Last week, on 24 May, this criminal case reached the highest French court, the Cour de Cassation. Some thought that the court was going to rule immediately on whether Total and the others were criminally liable for the oil pollution. Previously, the Criminal Court of First Instance, and the Court of Appeal in Paris  had said that Total and others were responsible. But now the prosecutor, Advocate-General Boccon-Gibod, was of the view that Total had no criminal liability. His written opinion appears not to have surfaced on the ‘net, but from the decision of the Court of Appeal (for the brave, and not for those with slow broadband, all 487 pages), you can see the points that Total was making, and which he seems to have accepted.

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