piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Cost Budgets – Rule Changes

Changes to the CPR coming into force today alter the rules relating to cost budgets. In cases with a stated value of over £50,000 all parties except litigants in person will now exchange budgets 21 days before the first case management conference. Parties must then file an agreed  “budget discussion report” at least 7 days before the first CMC setting out what is agreed, what not agreed, and brief grounds for the latter. The parties are encouraged, but not required, to use a new precedent (“Precedent R”) for the purposes of the budget discussion report. New Rule 3.13 reads:  (1) Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets— (a) where the stated value of the claim on the claim form is less than £50,000, with their directions questionnaires; or (b) in any other case, not later than 21 days before the first case management conference. (2) In the event that a party files and exchanges a budget under paragraph (1), all other parties, not being litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference.   Paragraph 6A of Practice Direction 3E now reads: The budget discussion report required by rule 3.13(2) must set out— (a) those figures which are agreed for each phase; (b) those figures which are not agreed for each phase; and (c) a brief summary of the grounds of dispute. The parties are encouraged to use the Precedent R Budget Discussion Report annexed to this Practice Direction.   These changes are to be welcomed. Earlier exchange of budgets before a CMC should ensure that points of dispute are identified earlier and with greater clarity. Having the extent of agreement and disagreement in a single document also makes sense. Previously one often had to refer to points spread across a stream of correspondence. There remain more fundamental problems with cost budgets which are not addressed by these changes. It remains to be seen whether further reform can make the system as a whole operate smoothly and efficiently.

Damages for abuse

The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser’s actions. The court was therefore concerned solely with the assessment of damages. The case had one feature that is depressingly common and one that is rather unusual. It is also, in more general terms, a helpful illustration of how courts may approach the difficult issues that cases of this kind throw up. It is often the case that victims of abuse are peculiarly vulnerable individuals. Sometimes this gives the abuser the opportunity to perpetrate abuse (for example, if a child is in care) or prevents the abuse being detected (because there is no-one the child can trust enough to confide in). The correlation (or at least frequent concurrence) of pre-existing vulnerability and abuse makes determining issues of causation in such cases difficult, because children who have experienced traumatic childhoods may already be destined to lead difficult adult lives in any event. In this case, the Claimant’s parents separated when he was four or five years old after his father had been violent towards his mother. He began using drugs in his teens and subsequently obtained his income principally from drug-dealing, with the exception of a few short-lived periods when he was in employment. He had a number of convictions for offences relating to drugs, firearms, dishonesty and violence.   The Claimant contended that he was entitled to a Blamire award for loss of earnings, past and future, on the basis that his inability to find sustained employment was a result of the abuse he had suffered. The Defendant accepted that the Claimant was entitled to general damages, but disputed the loss of earnings claim, contending that it was his “lifestyle choices” rather than the abuse that had prevented him being in sustained employment. The Defendant further contended that, even if factual causation was established, much of the Claimant’s loss should be deemed irrecoverable as a matter of public policy because it arose from the consequences of the Claimant’s own criminal conduct. After a careful analysis of the facts, the court preferred the Defendant’s case on causation. As a result, it did not have to go on to consider the application of the ex turpi maxim. It assessed general damages at £48,000 and dismissed the claim for aggravated damages with reference to Richard v Howie [2004] EWCA Civ 1127. The unusual feature of the case was that at the time he was subject to the abuse, and for some time afterwards, the Claimant and another boy effectively blackmailed the abuser when they realised they could demand from him rewards of money and material possessions in return for keeping quiet about the abuse. The Defendant contended that it should be given credit for the sums thereby extorted from the abuser by the Claimant. It was prayed in aid in support of this submission that the Claimant had himself described the payments in his witness statement to the police as “compensation”. Such a submission is so obviously unattractive that it is perhaps surprising that it was ever advanced and it is not at all surprising that it was rejected by the judge, who held (a) that the payments were gifts and hence could not properly be considered as compensation and (b) that as a matter of public policy the Claimant’s damages should not be reduced as the Defendant suggested. The judge reached the right conclusion, but for the wrong reasons. The payments were not gifts; they were, on the facts, part of a bargain between the Claimant and the abuser whereby the abuser sought to buy the Claimant’s silence so that he could continue to perpetrate abuse (of the Claimant and of others). The real reason the Defendant was not entitled to credit for the payments was that they did not relate to the subject matter of the claim, which was damages for the effect of the abuse on the Claimant in terms of pain, suffering, anguish etc. The abuser made the payments so that he could continue his abuse, not to compensate the Claimant for the effects of that abuse. Because the Defendant’s contention could have been dismissed for that reason, the resort to public policy was unnecessary and possibly unhelpful for future cases where the same or similar issues arise. There may be cases where it would be appropriate for a defendant to be given credit for payments made by an abuser. Suppose an abuser later repented of their abuse and wrote to their former victim expressing contrition for the harm they had caused and enclosing a cheque which the victim banked. Such cases are likely to be exceptional, but as and when they do occur then on what principle of public policy should a defendant who was vicariously liable for the abuser’s actions not be entitled to have that payment taken into account? There will be cases at the margins which will be difficult to decide, but the principle that should be applied remains whether the payments were genuinely compensatory or whether, as here, they were really the price that the abuser was willing to pay to avoid detection. A victim extorting money from an abuser may be unusual but it is not unprecedented. A case that sticks in the mind from criminal law lectures is R v Camplin (“the chapati pan case”) where the defendant murdered his abuser, who he had been blackmailing in return for not revealing the abuse of another boy called “Jumbo”: see the report from the Court of Appeal [1978] QB 254 at 257C. Many of the abuse cases currently working their way through the courts involve wealthy abusers who may have made payments to their victims. How to treat those payments is therefore an issue which the courts are likely to have to address again before too long.

Fixed Costs and Part 36 Offers

What is the effect of a claimant’s ‘beaten’ Part 36 Offer upon their costs in a low value personal injury case within the RTA or EL/PL Protocol where claimants' costs are fixed pursuant to CPR 45? This has been a vexed question since the introduction of the fixed costs regime , but one the Master of the Rolls giving the sole judgment of the Court of Appeal in Broadhurst & Anor v Tan & Anor [2016] EWCA Civ 94 has now answered with important and far-reaching consequences for litigators in this area. The Court of Appeal held that Parliament and the draftsmen of the amended Rules intended Part 36 offers to have costs consequences in cases where they were bettered at trial even where costs were usually fixed. This means that, per Rule 36.14(3), where a claimant makes a successful Part 36 offer, the court will, unless it considers it unjust to do so, order that the claimant is entitled to four enhanced benefits including "(b) his costs on the indemnity basis from the date on which the relevant period expired” and thus (as held) the “tension between rule 45.29B and rule 36.14A must, therefore, be resolved in favour of rule 36.14A”, the specific provision taking precedence over the general.    At paragraphs 30 and 31, the Court held that:    “...The starting point is that fixed costs and assessed costs are conceptually different. Fixed costs are awarded whether or not they were incurred, and whether or not they represent reasonable or proportionate compensation for the effort actually expended. On the other hand, assessed costs reflect the work actually done... ...Where a claimant makes a successful Part 36 offer in a section IIIA case, he will be awarded fixed costs to the last staging point provided by rule 45.29C and Table 6B. He will then be awarded costs to be assessed on the indemnity basis in addition from the date that the offer became effective. This does not require any apportionment. It will, however, lead to a generous outcome for the claimant. I do not regard this outcome as so surprising or so unfair to the defendant that it requires the court to equate fixed costs with costs assessed on the indemnity basis... a generous outcome in such circumstances is consistent with rule 36.14(3) as a whole and its policy of providing claimants with generous incentives to make offers, and defendants with countervailing incentives to accept them.” Whether this clarification will lead to an increase or decrease in litigation will remain to be seen. Certainly the current interpretation of this (formerly) knotty issue ought to remind all litigators, but particularly those acting for claimant parties, of the importance of early, well-pitched Part 36 Offers in both encouraging settlement and giving rise to another means of escaping the confines of the fixed costs regime.

BBC Expose of 'Crash for Cash' Ring

For some light relief (this is being posted on a Friday afternoon after all!) any practitioner involved in PI cases where fraud is alleged could be advised as to look no further than the detailed article published on the BBC Wales’ website about a successful prosecution of a so-called ‘crash for cash’ ring, in this case an extended family. This would appear to be something of an extreme case, the publicisation of which will no doubt be pleasing to insurance companies seeking to highlight what they suggest is the prevalence of such behaviour, albeit on a less industrial scale.   The modus operandi of the Yandell family from south Wales was to submit claims for entirely fraudulent road traffic accidents replete with bogus repair invoices, hire car charge invoices and other bogus evidence as well as various friends and relatives roped in as phantom passengers. Police suspected they made in excess of £2 million over the years.   A particularly (though soberly unsurprising for anyone concerned with such claims, such as the author) runs:   “ ‘Originally they'd tried a couple of collisions to get a bit of extra cash,’ said DC Jon Parkinson. ‘They realised there was a lot of money to be made.’   The Yandells also realised that insurance companies would soon become suspicious if the same names kept cropping up on claims.To get around this, they began roping in friends and other family members. The more names and addresses involved, the less risk there was of insurance company fraud investigators smelling a rat.   It worked something like this: 1) The Yandells and their associates would invent car accidents in which one party would pose as the non-fault driver 2) The at-fault vehicle would either have high mileage or be mechanically problematic. No loss as it was worth more as a write-off and money could be made by removing parts, headlamps, gearboxes 3) The non-fault party then submits an insurance claim for damage to their car, personal injury, courtesy car, crash repairs and so on 4) The Yandells would submit fraudulent courtesy car and repair invoices to insurers 5) Other family members and friends or friends-of-friends would then be roped into the deal. They agreed to lie and say they were in the car at the time 6) A flurry of cheques follow ranging from £10,000 to £40,000 per accident - new cars, personal injury payouts, courtesy car charges and bogus repair bills   But the accident had never happened. So, before any inspectors arrived from insurance companies, the Yandells had to make sure the cars looked suitably smashed up.   The gang would damage cars with hammers, or drive cars into one another ... ”   The extensive article includes photographs and excerpts from BBC Wales' Week In Week Out current affairs programme, including footage of cars being deliberately damaged to bolster claims – to repeat, it’s really worth a read/watch!   The good news is that the report states that the Yandells have been stopped. Prosecutions were buoyed by the availability of CCTV footage as well as intelligence gleaned from social media. The BBC suggested that in total over the past five years some 83 people have been found guilty in the criminal courts for this fraud, specifically: 81 on conspiracy to defraud and two for theft. It is said that they received sentences ranging from six years in jail to suspended prison terms. Next week the final five people involved are due to be sentenced.   The article is available at http://www.bbc.co.uk/news/uk-wales-35357195.  

Scrutiny of Medical Evidence & Physiotherapy Charges in low-value PI cases

I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.   The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.   Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).   The Claimant submitted a Notice to Discontinue.   His solicitors came off the record as acting for him.   The Defendant applied to have the Notice of Discontinuance set aside.   On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including: that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant; indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident; that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions; the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).   The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.   The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR): defendants should be less prepared to accept the conclusions of medical professionals as face value; claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms; charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for; the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?

Guidance as to Litigants-in-Person, a sign of the times?

The Bar Council, Law Society and Chartered Institute of Legal Executives has produced some joint guidance for lawyers in how to conduct themselves towards a litigant-in-person. The Guide (available at http://bit.ly/1IkTPig) remind practitioners of their professional obligations and that the growing rise in unrepresented parties should be regarded as a sign of the times, rather than a sign of there simply being more vexatious litigation. It recognised that the increase in litigants-in-person may lead to an increased burden of work upon a represented party, ranging from the practical production of bundles, to the degree of procedural assistance such a party ought to offer.   The Guidance suggests (amongst other key points):   You should take care to communicate clearly and to avoid any technical language or legal jargon, or to explain jargon where it cannot be avoided: a LiP who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language.   You should take extra care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing any personal opinions on the LiP's behaviour…   If you speak to a LiP outside court it is generally wise to do so in the presence of a colleague, if possible. It would be wise in any event to make a note as soon as practicable of any material explanation or assistance which you have given to a LiP.   If you are negotiating a settlement it would be more appropriate to say ‘are you prepared to agree to…’ rather than to say ‘the courts in this situation would never agree to x, so I suggest that you agree to….’. The latter approach might be seen as unfair to the LiP, even if legally accurate.   Where a LiP is a defendant to proceedings and no other pre-action protocol applies, the Civil Procedure Rules (CPR) state that you should refer the LiP to the Pre-Action Conduct Practice Direction and draw their attention to paragraph 4 which concerns the court's power to impose sanctions for failure to comply with the Practice Direction. You can inform the LiP that ignoring the letter before claim may lead to the claimant starting proceedings, and may give rise to a liability for costs.   Where a specialist protocol applies and more detailed pre-action procedures are required, a LiP will ultimately be subject to the same obligations as a represented party. You should consider sending a copy of or a web-link to the relevant protocol to a LiP when first contacting them about a claim.   You should communicate in a manner of which the court would approve, which includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable. This does not mean that you have to tolerate unacceptable behaviour from a LiP, nor does it mean that a LiP has a right to expect you to respond immediately to their calls or correspondence.   It will be important to explain to your client why you are giving assistance to the opposing party, if this is not made clear in court by the judge. You should emphasise that you have a professional duty to the court and that in the interests of fairness the court may require you to provide procedural assistance to a LiP.

Have we started yet? Commencement of contested hearing and CFA uplifts

When a trial begins is of obvious import to any litigant where one or more party is funded by a conditional fee agreement which provides for an uplift per CPR 45.16 and 45.17. Mrs Justice Slade in a recent appeal from Master Campbell held that a contested hearing on the issue of liability had yet to commence before a subsequent settlement.   The facts of James v Ireland [2015] EWHC 1259 (QB) are unusual but not exceptional.   On the first day of a three day trial of a personal injuries case, the claimant successfully applied for an adjournment of the issue of quantum, it being intended that the issue of liability would proceed. Unusually however, late evidence disclosed by the defendant that hitherto unidentified independent witness. To allow for a statement to be taken from the same by the claimant, the matter was adjourned to the following day. The judge asked counsel what to read overnight. The next day it was revealed that attempts to contact the elusive independent witness had been unsuccessful. Nevertheless, the case was adjourned to the afternoon so that attempts could continue. These attempts were also fruitless, however given the likely importance of the witness the case was stood out. The judge reserved the matter to himself for a hearing at a later date. This hearing never took place as the claim was settled.   Had the liability trial commenced? The master held that it had. Counsel had entered court. Reading had commenced. Submissions had been provided and considered as to the adjournments. Thus, it was held that the claimant was entitled to the 100 percent costs uplift.   The defendant appealed, arguing that the master erred by failing to hold that nothing in the heard proceedings constituted a core event, such as would indicate that the liability trial had begun (Cutler v Stephenson and Manchester City Council [2008] EWHC 3622 (QB); Gandy v King [2010] EWHC 90177 (Costs)). It was further submitted that the judge would have held that the case was part heard had he considered the trial to have begun, rather than ordered it to be relisted reserved to himself. The claimant argued that the trial had begun as the judge had done pre-reading and that the submissions on the quantum aspect of the case would not have required further elucidation to open as to liability.   The Defendant’s submissions found favour with Mrs Justice Slade who held that a final contested hearing of the liability issue was not triggered by the commencement of any hearing of any nature related to the same. The hearing which was commenced was akin to a case management hearing, as the same did not consider any aspect necessary to determine the question of liability. The reading undertaken by the judge was held to have been prudent use of court time rather than a substantive consideration of a core issue. She held further that the transcripts actually supported the contention that the judge was unaware of the scope of the main issues of the case as to liability when the matter was stood out.

Relief from Sanctions / Strike Out - Is it "worth a go"?

Last week the Commercial Court dealt out a salutary warning to Parties whom are seen to opportunistically attempt to take advantages of defaults by their opponents.   Mr Justice Popplewell in the case of Viridor Waste Management Ltd v Veolia ES Ltd (unreported, QBD (Comm) 22 May 2015) awarded a claimant its costs assessed on the indemnity basis in circumstances where it was held that the defendant had taken unreasonable advantage of the claimant’s late service of particulars of claim in the hope of securing an opportunistic strike out. It was held that in the circumstances, relief from sanctions was the obviously appropriate outcome.   The facts however do not appear to be starkly in favour of the eventual outcome before the Court.   Here, the claimant’s Claim Form (claiming some £32 million for unjust enrichment) was served four days late. This was overlooked by the defendant and in without prejudice discussions a twenty-eight day extension for service of particulars of claim was agreed. However, the claimant defaulted on this agreement (the second default in the short history of the case) when these particulars were not only served a day late, but were done so by second class post, which is a method of service unrecognised by the CPR. The Claimant subsequently re-served by hand, email and first class post, albeit five days beyond the agreed deadline.   Rather than consent to the claimant’s application for an extension of time for service, the defendant applied to strike out on the grounds that the delay itself and failure of the method of service were serious breaches of important rules of procedure. It was also argued that to allow an extension would also effectively extend limitation on the facts of this case.   In the author’s opinion, the grounds put forward by the defendant had  some merit and given the potential value of the case, may well be one where a party is urged to “have a go” albeit perhaps opportunistically. The claimant had defaulted previously and the tenor of the so-called ‘Jackson reforms’ is to consider default from procedural canon to be serious.   Popplewell J however disagreed with the Defendant and your author. He held that it was unrealistic to regard any delay as being always “serious and significant”. On the facts of this case, it was held that the default should be “measured” to being just a few hours late, given the fact that the particulars of claim were in the defendant’s hands via second class post the day after that when service was due. A purposive approach was taken to the rule of service, and it was held that the said delay of a few hours would not have had any real impact on the course of litigation, other litigation or other court users were it not for the defendant’s application. Applying the Court of Appeal’s guidance in Mitchell and Denton therefore, it was held that the breach was immaterial and thus relief should be granted.   Unfortunately for it, things did not end there for the beleaguered defendant. The court held because it was obvious that relief from sanctions ought to be granted in this case, the actions of the defendant were an attempt to take unreasonable advantage of the claimant’s default in the hope of obtaining a windfall strike-out. This, and the defendant’s refusal to consent to the claimant’s application, was held to have caused further delay in this litigation as well as a negative impact upon other court users. Thus the claimant was awarded not only its costs, but they were to be assessed on the indemnity basis too.

More Political Uncertainty for PI Litigators

Ian Miller’s recent post looking at of what party manifestos might tell us about the way ahead for personal injury lawyers identified a large number of potentially significant and yet radically differing changes ahead. Which actually lay in store for us was, of course, going to be dependent upon which way we voted – and upon which post-election alliances were formed and the compromises that were going to be required to hold them together.   Surprisingly, only a short time after that post was published, we find ourselves in a position in which a much clearer outcome has emerged from that election than appeared likely at the time of Ian’s post. Whilst the Green Party’s proposal to bring back legal aid never really appeared to have much of a chance of being implemented, it did at times appear that a return to one-party government was not a great deal more likely. Nonetheless, that is where we find ourselves.   As a result, one might expect that we would be able to move on from the election better able to plan for the future with a degree of certainty as to what might lie ahead. Despite the relatively conclusive outcome to the election, whether this is in fact the case for personal injury lawyers is however questionable. The “in-out” referendum promised in the Conservative manifesto makes it (still) very difficult to predict what might lie in store – whatever the result and whatever interpretation one might put on the contents of that manifesto.   Opposing views as to which outcome of the referendum might be preferable are beginning to appear in the media - despite the fact that there appears to be very little (or no) suggestion as to what changes might be wrought by the “new settlement” to which the manifesto refers. Insofar as it might affect the business of personal injury litigation, the possibilities seem both endless and potentially very far-reaching, whether we end up with a novel basis of membership of the EU or indeed no membership at all.   The possibilities for change (whether intended or not) are myriad – whether under a “yes” to a novel settlement or a “no”. One can only wonder what might ultimately be the subject of renegotiation or an “opt out”. What, for instance, would be the position in relation in relation to claims arising from road traffic accidents abroad? Would claims arising from package holidays still fall to be dealt with in the same way? Would potentially diverging consumer standards impact upon product liability claims?   It is equally hard to see how any degree of disengagement from the EU would or could permit a status quo to be maintained, even where this might be perceived as a desirable compromise position in relation to a particular areas of law. Were this approach to be tried, it begs the question of what would happen when and if the remaining states revised the current situation. Would it necessitate renewal of the UK’s agreement to the position? Would it leave the UK outwith that agreement? Or would it leave us in some other position entirely?   Equally, were we to see a particularly emphatic “no” vote, could this be perceived as a mandate to “undo” some of the six-pack regulations or other legislation widely perceived as imposing “red tape” upon public bodies and employers? Given the contents of the recent Enterprise and Regulatory Reform Act 2013, it may not be a surprise if this were so.   So many questions – so few answers. Deciding how to vote in any such referendum is going to be challenging for anyone. To what degree it will be possible to make an informed decision about the issues potentially affecting personal injury litigation remains to be seen.   It can only be hoped that potentially significant changes receive the publicity and scrutiny that their significance would merit. Given the apparent lack of appreciation of the significance of the changes wrought by the Enterprise and Regulatory Reform Act 2013 prior to its coming into force, it does not seem to be inappropriately pessimistic to wonder whether this will in fact be the case.   Time, as ever, will no doubt tell…

Holding out for the Heroism Bill

The Social Action, Responsibility and Heroism Bill (dubbed by some the “Sarah Bill”) is being returned to the House of Commons, with amendments, following its final reading in the House of Lords on 6 January 2015. The much-maligned and exceptionally brief Bill seeks to introduce a requirement that courts deciding negligence and/or breach of statutory duty cases and in determining the standard of care give consideration to whether the activity or omission complained of was for the benefit of society, whether the person carrying out the activity demonstrated a “predominantly responsible approach” in protecting a person’s safety or other interests and whether (in emergency situations) the person intervened “heroically”.   Clause 4 in particular makes clear that the Bill is aimed predominantly at personal injury cases, although it will apply to non-personal injury cases. Critics of the Bill have suggested that it is largely being promoted by the Government to further protect employers and to appease the insurance industry. Indeed, the Bill has been criticised on several grounds, mostly as being a mere publicity stunt by the Government but also for its vagueness. The Sarah Bill is designed to afford greater protection to volunteers and employers who might otherwise be deterred from performing worthwhile deeds or organising events due to the risk of finding themselves on the end of a negligence claim. The Bill survived an attempt in December 2014 at the Second Reading to remove most of its (four) clauses. At the Third Reading, clause 3 (the social responsibility clause) was amended such that (in assessing the standard of care) the individual’s approach towards protecting the safety and interest of others must have been “predominantly”, rather “generally”, responsible. Clause 4 was also amended, removing the words “and without regard to the person’s own safety or other interests” to make clear that the clause applies equally to those cases where the person (sorry, hero(ine)) assess  the risks to their own safety or other interests before intervening (as well as those where they did not assess the risks). The amended Bill will be considered by the House of Commons on 2 February 2015. If the Bill is passed, there are potentially difficult questions for the judges on the ground to answer. The Bill is somewhat unhelpfully brief and uses terms which are somewhat “foreign”. The first difficulty is going to be determining when a defendant’s action was “for the benefit of society or any of its members.” The clause has a potentially enormous scope. Employers, particularly in the public sector, are likely going to try to fit themselves under this clause. But even if they do, you may well ask, so what? It is only a factor for the judge to consider and is by no means a defence. There is no indication of what weight, if any, judges will place on this factor. Judges will also have to decide on what is meant under clause 3 by a “predominantly responsible approach” in protecting the safety or other interests of others. Again, the potential scope of the clause is vast. Will it apply, for instance, to all medical professionals? Will it apply to any attempt by an employer to introduce some health and safety measure? And what is the tipping point for an approach to be categorised as “predominantly responsible”? There is potential for a stream of cases on that issue alone, unless of course there is a judicial reluctance to engage with the clause and it goes the way of section 1 of the Compensation Act 2006. It is also questionable how many cases will fall under clause 4 (the heroism clause). But for those that do, what do we mean by acting “heroically”? This is an entirely foreign legal concept and is open to a sliding scale of judicial interpretation.  Are doctors acting “heroically” in emergency situations or will the clause only apply to the volunteer, have-a-go hero(ine) which the Government seems to have intended? The Bill, as is stands, is brief, vague and uses terms to which the legal world is not accustomed. Although cases might throw up interesting questions on how to interpret the Bill, one has to wonder whether it will all be for nought. Chris Grayling MP himself has said, "The bill will not change this overarching legal framework, but it will direct the courts to consider particular factors when considering whether the defendant took reasonable care." If judges do not engage with it or consideration of these particulars factors makes no material difference in practice, will defendants even bother to try to fit their cases under one of the clauses? Much like section 1 of the Compensation Act 2006, it will be judicial appetite that determines how effective the Bill’s clauses become. Given the criticism of the Bill in judicial circles, do not expect that appetite to be very strong.