OFT v Abbey: more misery for the banks

April 25 2008

Here’s the vast, 450-paragraph judgment of Andrew Smith J in OFT v Abbey and others, a judgment that will depress those poor banks even more, though it will cheer up money saving experts, impoverished law students, poor pupil barristers and wealthy banking litigation partners.

I always thought this campaign would succeed eventually – though of course I realise this is far from the end. The other thing that’s interesting is to wonder what effect this judgment might have on the UK economy: I can’t think of a more critical time this judgment could have been delivered.

2008-04-25T10:44:00+00:00Tags: , , |

Lords judgment: Ashley v Chief Constable of Sussex

April 23 2008

This case is about a civil action against the police, who shot dead an unarmed man when raiding his home to arrest him. The policeman who fired the shot was acquitted of murder and manslaughter on the judge’s direction; now the family are suing the police not only for negligence and under the Fatal Accidents Act, but also for assault and battery – a claim involving a greater implication of wrongdoing as far as the police are concerned. The police admittedly liability in negligence, and are proposing to settle, even paying aggravated damages.

Two issues arose: first, should the law of self-defence in a civil claim for assault be (1) the same as that in a criminal case – in other words, the need to respond to an imminent attack must be judged on the the facts as the defendant honestly believed them to be, whether or not he was mistaken and whether or not that mistake was reasonable; (2) the necessity to respond must be judged on the facts as the defendant honestly believed them to be but, if he made a mistake of fact, he can rely on self-defence only if the mistake was reasonable; (3) the defendant must establish that there was in fact an imminent and real risk of attack. The Lords all agreed there was no need for the civil law to be the same as the criminal law, as they serve different purposes: a number of them had sympathy for solution (3) as perhaps most attractive, but in the absence of argument from the parties, they left that point open and agreed that approach (2) is for the moment the correct test for self-defence.

The second issue was whether, given that the claimants have already achieved practically all that this litigation can achieve – an agreement they should receive aggravated damages – it would be an abuse of process to go to trial simply on the point of principle that the police should be found to have assaulted the deceased. On this point, the Lords were divided: Lords Bingham, Scott and Rodger thought there was no abuse, and the claim should be allowed to proceed: the fact that there is no admission of liability in assault means the trial would not be pointless; Lords Carswell and Neuberger thought pursuing nothing but a principle was a pointless use of the courts, and should be stopped.

I’m with the majority, I think, at least on the broad principle that money alone should not be the only justification for taking civil action.

2008-04-23T12:44:00+00:00Tags: , , , |

The Employment Tribunal, article 6 and chronic fatigue

April 22 2008

PJH law have spotted an interesting employment appeal case in which an employer has essentially succeeded in having a claim struck out on human rights grounds: to continue would breach its right to a fair hearing under the article 6 Convention right. PJH law links to the judgment: the key passage is from paragraph 49.

A very interesting approach, but the facts were unusual: the claimant had chronic fatigue syndrome, which was what led to her dismissal: she’d been off sick for nearly three years. She made her claim in early 2004 for her unfair dismissal and disability discrimination, but the case kept being put off because of her illness, until nearly three years later the ET struck her out – no doubt feeling tempted to make insensitive chronic fatigue jokes.

Two interesting points: first, it’s yet another demonstration, if any were needed, that firms, not just individuals, enjoy Convention rights under the Human Rights Act. It’s astonishing how often people assert, often with great confidence, that they don’t. There was a suggestion early on in the political history of the HRA that the rights should only be given to natural persons – companies, under that approach, would only be able to enforce their rights via the ECtHR in Strasbourg. I think if I remember right, Liberty advocated that approach. I think that has a lot of attractions (some of the rights claimed by companies have made a mockery of the whole concept of human rights – I’m thinking especially of this case) but there’d have to be exceptions. The article 10 freedom of expression can only properly be protected, for instance, if newspapers, publishers, theatre producers and broadcasters can go to court. Perhaps article 6 is another exception: arguably article 6 cannot be properly applied in civil cases unless each party can rely on it. So I’m not against the general idea that employers should have the right to a fair hearing too, in this type of case.

The other point is that clearly, in such a case, one side’s right to a hearing – the claimant’s here – in a sense has to be balanced against the other’s right for that hearing to be fair, and within a reasonable time. As the EAT said, these different elements of the right are separate (see para. 45 of the judgment) so you can’t say the employer only gets its right to fairness if the claimant first gets her right to a hearing. But I would have thought a tribunal must feel sure fairness is impossible to achieve before the balance shifts so far as to deny the claimant the right to a hearing.

The judgment refers to another ruling in a case called Abegaze which I can’t find yet, but will set out the applicable principles in greater detail: I’ll link to it when I can.

2008-04-22T15:01:00+00:00Tags: , |

Charon’s new initiative

April 18 2008

You have to hand it to Charon QC. He already writes what I think must be Britain’s most widely read law blog, and has taken a lead in establishing podcasts as a regular part of his offering. Now he’s launched insitelaw which comprises a newswire, which is full of links to law reports, blogs and all kinds of legal news and which will carry his podcasts, and a blog. He’ll also still be writing the Charon QC blawg.

How does he do all this? If that’s what Rioja does for you, I must increase my intake.

2008-04-18T15:42:00+00:00Tags: |

Joshua Rozenberg on BAe

April 18 2008

An interesting take on the Corner House judgment from Joshua Rozenberg in the Telegraph: he thinks the government got into difficulties because the case happened to be dealt with by the SFO, when it might well have been investigated, instead, by the police, in which case the CPS would have taken Lord Goldsmith’s advice and concluded there was insufficient evidence to proceed in any event. A much less controversial approach. Rozenberg, like me, has mixed feelings about the judgment, with head worrying at qualms that heart initially ignored.

I don’t agree with him, though, that the draft Constitutional Reform Bill would solve the government’s problem. I think a decision by the Attorney to halt a prosecution on national security grounds would still be judicially reviewable on the basis of unreasonableness or that national security was being abused to cover up commercial motivations – it seems to me Corner House could still have won a challenge even if the new provisions had applied in this case.

2008-04-18T14:40:00+00:00Tags: , |

Smith v Asst. Deputy Coroner for Oxfordshire

April 18 2008

I can now link to Collins J’s judgment in the case that received lots of media coverage the other day, on the right to life and troops in Iraq – although it looks as though some further observations from Collins J on the Gentle case are still being transcribed.

Reading the judgment does make you realise the media fuss was perhaps overdone: the controversy can only really be about Collins J’s suggestion at para. 20 that a soldier

does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2. If I may take a historical illustration, the failures of the commissariat and the failures to provide any adequate medical attention in the Crimean War would whereas the Charge of the Light Brigade would not be regarded as a possible breach of Article 2. So the protection of Article 2 is capable of extending to a member of the armed forces wherever he or she may be; whether it does will depend on the circumstances of the particular case.

Yes, there is a potential danger here, depending on what approach is taken to deciding whether equipment is “defective”, and how Collins J bases his simple assertion that the Charge of the Light Brigade would not breach article 2, I don’t know.

But the actual facts of the case were about a soldier who became ill inside a British base in Basra where the army was clearly in control (at least then, August 2003). I don’t think there can be much doubt that that’s within British jurisdiction applying Al Skeini; perhaps Collins J’s additional observations will distinguish the facts here from those of Gentle.

2008-04-18T14:16:00+00:00Tags: , , |

David Pannick on the Fayed farce

April 15 2008

I completely agree with David Pannick’s view in the Times today: the Fayed farce shows us coroners need the discretion to decline to carry out an inquest in specific circumstances – where a death has already been properly investigated abroad, for instance, and when the public expense of an inquest cannot be justified.

We need a bit of caution about this, though: we don’t want a situation where the Army or rail companies can successfully argue that military boards of inquiry into deaths in, say, Afghanistan, or HSE investigations into rail crashes, are sufficient.

2008-04-15T13:24:00+00:00Tags: , |

Head of Legal and the Telegraph

April 15 2008

A regular reader has let me know she’s “shocked” by my reactionary turn this last week. I suspect she may be easily shocked but I’ll risk sending her over the edge by linking to last week’s Telegraph leaders which seem at first sight to agree with the stances I’ve taken.

In fact it’s worth noting how their views differ from mine, though. They seem to think the BAe decision was justified, and justified in economic terms. I don’t, but I do say prosecutors should always weight the public interest when deciding whether to proceed, and that ministers should be able to intervene to stop a prosecution on grounds of national security. They want a legal immunity to cover troops in battle; I just think there are dangers in applying the right to life in combat situations and that if this new principle stands, it will need great care.

2008-04-15T13:08:00+00:00Tags: , , |

BAe: Lord Goldsmith’s intervention

April 14 2008

I’m glad Lord Goldsmith spoke up about this in an interview on Sky News yesterday. I’m not so much interested in his defence of the decision to drop the investigation, but in the point of principle he raises (in the video clip I’ve linked to: I don’t think the written report does justice to it). His point was that the Administrative Court’s ruling last week raises serious questions about the traditional duty of a prosecutor to weigh whether any prosecution is in the public interest or not. Fair enough, an unreasonable decision will be unlawful; but to limit in principle the circumstances in which discontinuance will be unlawful potentially conflicts with the traditional position – care needs to be taken.

His concern is essentially the same as my second qualm about the ruling; I also alluded to it in my comment about this at Iain Dale’s Diary.

2008-04-14T17:49:00+00:00Tags: , , , |
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