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Archives for : May2013

CPR blog – costs management

Another big change in the post-Jackson CPR is costs management by the courts. CPR 3.12 to 3.21 and Practice Directions 3E and 3F bring a new level of costs control to civil litigation. Some highlights:

  • Most cases now require the filing of budgets before the first case management conference
  • The court can now manage costs by revising budgets and making a costs management order to limit recoverable costs.
  • Costs management conferences can be called to manage costs, for example to revise a budget
  • Costs capping orders can be made to limit future costs to prevent disproportionate costs being incurred, taking into account any financial imbalance between the parties and overall proportionality; and a costs capping order can only be varied if there is a material and substantial change of circumstances or some compelling reason.

What this means in practice is that the courts will be even more astute to ensure that costs do no spiral out of control. Ultimately, the incurring of costs cannot be prevented, but their recovery even from an unsuccessful party can be.

This is coupled with the following:

  • Standardised directions and more limited disclosure
  • Increase of the small claims limit to £10,000, and the courts’ new ability to place claims on the small claims track even over that limit, thus greatly increasing the number of claims for which costs are not recoverable.
  • Removal of recovery of success fees on conditional fees – replaced with the possibility of a proportion of damages, but this may be less useful in commercial cases.
  • One way qualified costs shifting in personal injury cases – an alternative to recovery of after the event insurance or success fees on conditional fees. Only applies to personal injury, so not relevant in chancery and commercial matters.
  • More generous provision for claimants who beat Part 36 offers.
  • More straightforward process for assessing bills of costs under £75,000

It is quite clear that the new costs regime will require both attention from practitioners to ensure compliance with the rules, and limit the costs which can be recovered in small or medium sized cases (and to some extent even in the largest cases). This should level the playing field, and encourage settlement, but also increases the risk that in some cases, legal advice and representation will become unaffordable. Coupled with the more or less complete abolition of civil legal aid, the courts need to be astute to ensure that justice which cannot be paid for is not justice denied.

CPR blog – the new approach to case management

One of the main changes to the Civil Procedure Rules which has recently come into effect is the change to CPR 3.9, relief from sanctions. The old wording, with a detailed checklist of factors, has been replaced with the following:

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and court orders.”

This is coupled with the change to the CPR1.1 the Overriding Objective, which now adds expressly the need for the courts to deal with cases at proportionate cost, as well as justly.

Enforcing compliance with the rules was one of the main aims of the CPR, and it certainly brought a significant change to the culture that prevailed previously. But the courts, and Lord Justice Jackson in his report, consider that still more needs to be done to ensure that not only is justice done, but done in a way which is proportionate to the issues and the amount at stake. This comes across clearly in the gloss of Jackson LJ sitting in the Court of Appeal[1] in a case where a refusal to grant relief from sanctions was upheld, and he added [2]-[4]:

“Non-compliance with the Civil Procedure Rules and orders of the court on the scale that has occurred in this case cannot possibly be tolerated. Any further grant of indulgence to the defendants in this case would be a denial of justice to the claimants and a denial of justice to other litigants whose cases await resolution by the court. Mann J’s applicant of Rule 3.9 to the facts of this case cannot be faulted. I should however draw attention to the forthcoming amendments to Rule 3.9. There is a concern that relief against sanctions is being granted too readily at the present time. Such a culture of delay and non-compliance is injurious to the civil justice system and to litigants generally. [After the new rule comes in] litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto.”

Litigants will therefore have to be even more alert than before to the need to comply with rules and orders. Any likely missing of a deadline should be met by an application to extend time filed before the deadline expires (or a consent order to the same timescale) to try and avoid the need for relief from sanctions. The same is likely to apply to applications to adjourn hearings or vacate trials without an extremely good reason and ample notice.[2] Especially in relatively low value cases, paucity of excuses will not be tolerated. You have been warned!


[1] Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224, [2012] FSR 28

[2] Already patience for these is limited: Tinkler v Elliott [2011] EWCA Civ 1817

HR blog: property and retrospective legislation – Salvesen v Riddell

One of the features of the rule of law (and Article 7) is that legislation should not usually be retrospective. In the case of Salvesen v Riddell,[1] the Supreme Court had to consider a law passed by the Scottish Parliament which retrospectively affected rights to property.[2]

The situation concerned certain agricultural tenancies which had security of tenure. In order to avoid the security of tenure, landlords had developed a practice of creating partnerships between the landlord and the tenant. The tenancy was protected but the partnership was not, so the partnership could be dissolved to bring the tenancy to an end. That however defeated the purpose of protecting the tenancy. Thus a law was passed to allow the tenant to take over the tenancy: this preventing avoidance of the security of tenure.

However, the legislation to achieve this distinguished between different landlords according to the date of the notice served by them. The Act applied with some retrospective effect, but differentiating in its effect depending on the date of the service of the notice.

The Supreme Court held this infringed Article 1 of Protocol 1. The retrospective action of the statute was for a legitimate purpose because it was intended to stop large numbers of landlords seeking to avoid security of tenure by serving notices as soon as discussions of the proposed law started and so this was not necessarily incompatible with Article 1-1. However, there was no good reason for distinguishing between landlords who served notices before the Act was passed from those who served a notice afterwards and penalising one group but not the other. The statute could not be read so as to make it compatible with the Convention right. Therefore the specific provision was held to be discriminatory, in breach of Article 1-1, and so outside the legislative competence of the Scottish Parliament. However, since the Act was passed some 10 years before the decision, and since dealing with the consequences of the incompatibility required political judgment, the effect of the decision was suspended for 12 months[3] to allow the Scottish Parliament to address the consequences of the finding.

 



[1] Salvesen v Riddell  [2013] UKSC 22, 2013 GWD 14-304

[2] Agricultural Holdings (Scotland) Act 2003 s.72(10)

[3] Section 102(1) of the Scotland Act 1998

HR blog: Religion at Work – Eweida and others

The European Court has now considered a number of cases about the manifestation of religious beliefs at work: Eweida, Chaplin, Ladele and McFarlane[1].

The cases of Eweida[2] and Chaplin concerned the issue of wearing jewellery of religious significance, in both cases a cross. Ms Eweida worked for British Airways and Ms Chaplin  was a geriatric nurse. In both cases the English courts had held that there was no breach of Article 9 because the bans were justified.

In the case of Ladele,[3]  and  McFarlane, [4] employees complained that they were being discriminated against because they were required to provide services to same-sex couples which inconsistent with their own religious beliefs. Ms Ladele was a civil registrar, Mr McFarlane was a counsellor. In both cases, they lost before the English courts because the courts had to balance the employer’s own obligation to provide a service which did not discriminate against people on grounds of sexuality.

The European Court considered these cases together. The Court  held that there was no breach of Article 9 in the cases of Ms Ladele or Mr McFarlane: the employers were entitled to seek not to discriminate against same-sex couples, as this was itself an important interest protected by the Convention. However, a different balance applied in the cases of wearing a cross at work. There was a breach of Article 9 in the case of Ms Eweida: her right to manifest her religion was more important than the employer’s wish to project a corporate image, especially as the employer had allowed other religious clothing such as turbans and hijabs. But there was no breach in the case of Ms Chaplin: the importance of being allowed to manifest her religion was outweighed by the need for health and safety on a hospital ward, which was the basis for not allowing jewellery.

The Equality Act 2010 now provides more  of a one-stop shop for anti-discrimination legislation. However, here as well the balance will have to be struck between the rights of those affected and the need to prevent discrimination. The Convention rights will have to be taken into account, so the balancing exercise to be struck in respect of them will remain extremely relevant – and these cases suggest that the courts will have to be slightly more accommodating.



[1] Eweida and others v United Kingdom (2013) ECHR 012

[2] Eweida v British Airways plc [2010] EWCA Civ 80 [2010] IRLR 322

[3] Ladele v Islington LBC [2009] EWCA Civ 1357 [2010] IRLR 211

[4] McFarlane v Relate Avon [2010] EWCA Civ 880, [2010] IRLR 872

HR blog: revealing private history – MM and T

Issues about what information the state should retain, and what it should be permitted to reveal, continue to trouble the courts. In each situation there is a difficult balancing act to perform: the right of the individual to a private life, which limits the state’s right to retain information, against the interest of the state in preventing crime and protecting vulnerable individuals from harm, which is a public interest.

This fell to be considered by the European Court in the case of MM[1], a Northern Ireland case. Here the applicant had abducted her baby grandson during a family break-up, but only for a day and only to prevent him being taken abroad. She was not charged with an offence but was given a police caution. Some 12 years later, the caution was disclosed as part of a criminal record check and prevented her from getting a job as a health worker.

The European Court confirmed that both the storing and releasing of information concerning an individual’s private life engage Article 8. Criminal convictions start out as public information but as they become older, they can cease to be of public interest and become part of a person’s private life, because of the state policy of rehabilitation. Here, 12 years later, the caution was within the applicant’s private history. The Court held that the  provisions for storing data did not comply with Article 8 in the absence of clear and detailed statutory rules setting out what information should be collected, how long information should be held, what use it should be put to, and what safeguards applied. In particular, the rules on cautions were not statutory and did not allow for any deletion unless the data was inaccurate; and the law requiring disclosure did not take into account the seriousness of the offence or the time that had passed since it took place. Thus, the retention and disclosure of the information about the caution data could not be regarded as having been in accordance with the law and so was in violation of Article 8.

This was followed in the domestic case of T[2]. Here, the Court of Appeal had to consider the English law which permitted the disclosure of a person having received police cautions. The Court held that the statutory regime which required disclosure of all convictions and cautions relating to all recordable offences was disproportionate to the legitimate aims of the disclosure, which were protecting employers, protecting vulnerable individuals in their care and enabling employers to assess the suitability of a candidate. The blanket disclosure system went beyond what was necessary for these purposes and so was disproportionate. The relevant provision of the Police Act 1997 was therefore made the subject of a declaration of incompatibility and the statutory instrument relied on was quashed.[3]

Parliament has addressed storage of information recently in the Protection of Freedoms Act 2012, which addressed breaches of the Convention in the retention and use of biometric data such as fingerprints and DNA samples. It appears that more attention is needed to ensure that other data held by the police gives proper effect to Article 8.



[1] MM v United Kingdom (2012) (application 24029/07)
[2] R(T) v Chief Constable of Greater Manchester [2013] EWCA Civ 25 [2013] 1 Cr App R 27
[3] Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975

HR blog: Private information vs. a fair trial – Re A

Rights of individuals to control of their own private information is a perennial issue in modern society, where there is ever more data being generated and accumulated. But as well as balancing rights of privacy, perhaps against interests such as freedom of speech or prevention of crime, sometimes the right on the other side of the balance is to ensure a fair trial and to protect others. This draws in Article 8, respect for private life, but also Article 6, right to a fair trial.

This balance had to be struck in the Supreme Court case of Re A.[1] This was a case of proceedings about the contact that a child (C) should have with her parents, especially her father (F). The issue arose because an unrelated third party (X), had made an allegation that she had been sexually abused by F. X did not want to take any further action on the allegation and wished it to be kept confidential. The local authority wanted to refer to the allegation in arguing that F should not have contact with C. F sought disclosure of details of the allegation made by X as he denied it.

The Supreme Court had to address the difficult of issue of balancing these rights: the rights of C and of each of her parents to a fair trial under Article 6; C, her mother and F’s various rights under Article 8 to a family life; but also X’s Article 8 rights to respect for her private life. X also argued that she had rights under Article 3 on the basis that disclosure of the allegations would cause her psychological harm.

The Court considered that the starting point was clear: X’s allegations should be disclosed so that they could be tested in evidence and considered. This would ensure that the child was protected from a risk of harm, if there was such a risk, or allowed contact with her father, if there was no such risk. This was true under the law generally and the same answer applied to the balance to be struck between Convention rights. Disclosure of X’s details would also not amount to inhuman or degrading treatment;  X would have the support and care of her doctors to help with the process; and X would not necessarily have to give evidence in person. The potential risk of harm to the child and the Article 6 and 8 rights of the child and her parents justified interfering with X’s Article 8 rights.



[1] Re A (A Child: Disclosure Of Third Party Information) [2012] UKSC 60, [2012] 3 WLR 1484

HR blog: detention after conviction – James v UK

Indeterminate prison sentences have been in effect for some years and remain controversial. The aim of them is to protect the public from dangerous criminals. However, when they were first brought in, they applied to certain offences, which meant that they were imposed based on the offence committed and not on whether the convicted defendant was in fact thought to be a danger to the public

In the case of James,[1] the European Court considered a prison sentence which was determinate for the protection of the public. The applicants had been convicted of crimes and given mandatory indeterminate sentences because of the nature of their crimes, rather than by the exercise of judicial discretion. An indeterminate sentence includes  minimum term fixed by the judge and then there i the opportunity for release. However, the applicants had not been able to demonstrate that they were rehabilitated, because they did not have access to the necessary courses to satisfy the Parole Board. Thus they were unable to obtain early release.

The House of Lords had held that there was no breach of Article 5(1),[2] unless there should be a lengthy period without effective review by the Parole Board.

However, the European Court disagreed. The lack of availability of the courses meant that, once the prisoners had served the minimum term, their indefinite detention was arbitrary. Thus, there was no possibility of effective review of there detention. The system of mandatory indeterminate sentences has since been amended so that now such sentences are always discretionary and therefore only applied where the defendant is actually a danger to the public[3].



[1] James v United Kingdom (2012) applications 25119/09, 57715/09 and 57877/09

[2] Secretary of State for Justice v James [2009] UKHL 22, [2010] 1 AC 553

[3] Criminal Justice and Immigration Act 2008

HR blog: duty to protect life – Van Colle

One of the most important recent domestic cases on the extent to which the state has a positive duty to protect life was the case of Van Colle,[1] where the House of Lords held that there was no breach of duty by the police in failing to protect the life of a witness to a crime because the police did not know, nor should they have known, that there was a real and immediate risk to his life.

The European Court has now agreed with the House of Lords’ approach.[2] They agreed with the test being applied, and on the facts there was nothing to suggest to the police that there was a real and immediate risk to the life of the victim. The offences to which the victim was a witness were relatively minor, the accused did not have a history of violence, and the fact that the victim was a witness of crime did not of itself give rise to a fear for his life.

Van Colle in the House of Lords remains a leading case on the interaction between negligence and causes of action under the Human Rights Act so it is useful that its approach has not been cast into any doubt. This also confirms that the Act doesn’t create broader duties on public officials – there needs to be an appropriately foreseeable risk for liability under the Act, and there is no breach of the Act that there is no greater liability at common law.

 


 

[1] Van Colle v Chief Constable of Hertfordshire[2008] UKHL 50 [2008] 3 WLR

[2] Van Colle v United Kingdom (2012) appl 7678/09

HR blog: confiscation of proceeds of crime – R v Waya (2012)

The confiscation of proceeds of crime does not in principle infringe rights to property under Article 1 of Protocol 1, but may do in detail. The provisions on confiscation orders in the Proceeds of Crime Act 2002 (‘POCA’) were considered by the Supreme Court recently in the case of R v Waya[1].

The particular feature of POCA which was challenged was the removal of any judicial discretion about making a confiscation order where certain conditions are fulfilled. The Supreme Court held that this lack of discretion meant that there could be breaches of the  Convention right to property. Thus words should be read in: the relevant section should be read as though it was qualified by a provision that “except insofar as such an order would be disproportionate and thus a breach of Article 1, Protocol 1” to ensure compliance with the Convention. This did not re-introduce a general judicial discretion: in most cases, a confiscation order would be proportionate. But it would avoid a breach of the Convention in exceptional cases. The most likely example of a disproportionate order would be if the defendant had already restored the proceeds of the crime to the victim. This would be disproportionate as the purpose of the legislation is to deprive the defendant of these proceeds.

In Waya, the appeal was allowed (to an extent). The crime was a fraud whereby the defendant obtained a mortgage. The mortgage company was able to recover its loan against the property. So it suffered no loss. The courts below had not taken this fully into account: to that extent the appeal was allowed. The confiscation order was reduced to remove the amount that the mortgage company could recover, and also the amount of and benefit from the deposit paid by the defendant, which was not the proceeds of crime. Thus the order was revised to confiscate the benefit received by the defendant, which was that proportion of the increase in the value of the property which he had obtained with the fraudulent mortgage, ignoring the amount of the mortgage itself.

Demonstrating the difficult of this area, this was not unanimous: two of the Justices dissented considering that the benefit of the crime was only the obtaining of a mortgage on more favourable terms than otherwise, and this was relatively minor in financial terms This is not an easy area, but the Convention does allow for a more nuanced  approach to ensure that crime does not pay, but that it is only crime that does not pay!


[1] R v Waya [2012] UKSC 51[2013] 1 AC 294