disclosure 15 - apr 10 · liverpool l2 9su) on behalf of berrymans lace mawer llp and printed by...

April 2010

All change: what next?

ContentsEditorial board

Andrew Relton (guest editor)Helen CafferataLinda CoppellCatherine HawkinsVal JonesAlistair KinleyJenny MoatesJim SherwoodKathy Széputi

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Berrymans Lace Mawer

Editorial 2

Police health and safetygathers paceMatthew Harringtonand Jennette Newman 3

Multi-party claims –reform updateAlistair Kinley 6

Operation Genarch –a unique fraud insightSarah Hill 8

Filling the gaps?New measures proposed for‘legacy’ disease claimsBrian Goodwin 10

‘Grime’ and punishment:how much does the polluterreally pay?Michael Salau 12

If it ain’t broke ...Compensation, compensationand more compensation?Simon Morrow 14

Focus on reformComments on Lord JusticeJackson’s Civil LitigationCosts ReviewGary Allison, VictoriaCargill, Tony Waltonand Peter Stockill 16

A tangled web: privacy,principles ... or publish?Monica Bhogal 20

Who cares for older people?Who pays?Alistair Kinley 22

Disclosure: watching briefDarrell Smith, MichaelSalau, Alistair Kinley 24

Victory in CA forces ‘replay’in credit hire caseSarah Cartlidge 26

Turning a blind eye?Professional indemnityinsuranceNathan Penny-Larter 28

Data protection bitesA ‘toolkit’ for survivalElla Pirgon and Tim Smith 30

Fighting backDefeating dishonest claimsin the tort of deceitNaomi Grant 32

Risk v Benefit – anassessment see-saw?Roy Woollard 34

Ten out of ten forcommon senseA victory for education casesJeremy Davies 36

Property and policyWhen small print looms largeCatherine Hawkins 38

BLM reports 39BLM briefing 40

Disclosure April 2010 1

Cert no. SGS-COC-0620

Visit www.blm-law.com forelectronic copies. Informationis correct at the time of printing.

© Berrymans Lace MawerLLP 2010.

ISSN 1475-4711. Issue 15

EditorialThe general election is upon us and news is dominated by politicians seeking todistinguish themselves from their opponents when, given the economicconditions, there can be very little to choose between them. Despite theincreasing homogenisation of politics, dynamic change is already happening inthis, the first Facebook, YouTube and almost universally available broadbandelection; today’s live debates, instant news, information and analysis seem along way from the legal framework, dusty corridors of power and the lengthyand often tortuous process of turning ideas into solid legislation.

Since Disclosure 14 we have seen what is often described as the MoJ reforms(more properly described as the Pre-action Protocol for Low Value PersonalInjury Claims in Road Traffic Accidents) hove into view. The Jackson reviewcommented upon by Gary Allison, Vicki Cargill, Tony Walton and Peter Stockillrepresents a serious attempt to get a grip on the disproportionate differencebetween legal fees and damages recovered in what can only be described as anarchaic, price-controlled and increasingly out of date legal framework. Let ushope that the review, if implemented. does not miss the boat, or at least theimportant part of the boat which the access to justice, or Woolf reforms,introduced – namely the control of costs in low-value claims. The CompensationAct reappears for the first time since Disclosure 11, April 2008, with a duo oftimely updates.

The Third Party Rights Against Insurers Act 2010 – with its object of delivering asimplified process to ensure that those who need the Act are not required tojump through quite as many hoops as they have been since 1930 – isconsidered by Brian Goodwin and Nathan Penny-Larter. Fraud and credit hirecontinue to feature, and hanging about in the background is the discount ratereferred to by Alistair Kinley in one of his contributions to this edition.

Of course, everything may change after the election. We can then look forwardto the successful party, or parties, delivering on their pre-election promises. Asever, Disclosure will comment on the inevitable shifts in the legal landscape.

We hope you enjoy the read. At BLM we welcome any comments or enquiriesand invite you to contact our editorial board at [email protected]

Andrew ReltonPartner, BLM Manchester

Berrymans Lace Mawer2 Disclosure April 2010

In January 2010 an inquest into amotorway fatality in Liverpool foundthat two patrol officers failed to stopand pick up a drunken 26-year-oldman in the early hours of one morningbecause they did not have the righttraining or equipment. Within 40minutes, the man was dead, havingbeen knocked over by one car and runover by another. The case echoed anearlier case in September 2007 whenan inquest into the drowning of a 10-year-old boy in Wigan heard that twocommunity support officers stood bybecause they had not been trained onhow to respond.

Such instances have served topoliticise the ongoing debate as towhether the police service should besubject to the constraints purportedlyimposed by health and safetylegislation. This debate has somewhatintensified in recent years.

In the course of giving evidence duringthe HSE’s (Health & Safety Executive)unsuccessful prosecution of theMetropolitan Police in 2003 followingthe 1999 death of PC Kulwant Sidhuwhen he fell through a roof while onduty, the former Police Commissioner,Sir Paul Condon, said that there were‘hundreds, possibly thousands of risks

Disclosure April 2010 3Berrymans Lace Mawer

There were‘hundreds,possiblythousands ofrisks toofficers’

Police health and safetygathers pace

to officers’. Against such a background itwould be unrealistic to suggest that policeofficers can be trained for every eventualitywith which they may be confronted. Oncethey leave their police stations, officershave limited control over their workingenvironment. Policing is unique whencompared with other industry sectors. Forexample, in construction, hazards areusually more predictable and the stepsrequired to reduce them are reasonablystraightforward.

In December 2009, to widespreadcriticism by the police service, DavidCameron sought to attribute decliningpolice heroism to the spread of health andsafety culture. This committed theConservative Party to amend theapplication of section 2 of the Health andSafety at Work Act to ensure that whenpolice officers are at work, exercising theirrole as constables, the risk to the public isprioritised above the risk to individualofficers. Before Mr Cameron stepped intothis debate, however, two significantdevelopments had already changed thecontours of police liability for breaches ofhealth and safety.

New HSE guidelines

On 7 October 2009 the HSE publishednew policy guidelines which addressed thecircumstances in which the HSE mayintervene in the operation of the policeservice. The guidelines entitled Striking thebalance between operational and healthand safety duties in the Police Service werepublished with the backing of theAssociation of Chief of Police Officers(ACPO). In unveiling the policy, the HSEchair, Judith Hackitt said:

HSE and senior police officers want tostamp out the myth that health andsafety duties prevent the police fromdoing their duty.

She went on to recognise that police workinvolved decision-making and risk-takingin fast moving situations. She assured thepolice service that the policy guidancewould assist senior officers in balancingthe risks involved in their duties to fightcrime and protect the public with meetingtheir health and safety obligations to theirown employees and the public. In her

view, police officers ‘need protection justlike anyone else’. She stressed theflexibility of the legislation and thequalification of the requirement to controlrisks to staff and members of the public‘as far as reasonably practicable’. Whatwas reasonably practicable would, shesaid, depend upon the individualcircumstances: risks might properly betaken to apprehend dangerous criminalsor where judgment calls had to be madein dynamic, fast moving situations, withoutthe benefit of hindsight.

Striking the balance acknowledges that thepolice are a special case justifying a moreconsidered approach by the HSE. Infighting crime, the police effectively reducethe overall amount of risk to the publiceven though, at times, they may createrisks in pursuing their objectives. The policystates that any HSE inspector, wheninvestigating a police force, must haveregard to the ‘wider duties of the police tothe public’ as well as what ‘actualinformation’ was available to staff whenoperational decisions were made.

One consequence of this new approach isthat health and safety prosecutions are lesslikely in cases similar to those of theMetropolitan Police following the shootingof Jean Charles de Menezes at Stockwelltube station in July 2005. It was notable inthat case that a decision was made toprotect the public from a greater risk andthe decision-maker had limited informationavailable at the time. However, lack ofinformation and the general risk to thepublic will not safeguard the police fromprosecution altogether. The HSE willconsider the adequacy of risk assessmentsand how safe systems of work areimplemented. In terms of a constabulary’semployer’s duties, the HSE will alsoconsider the robustness of command andcontrol systems and the adequacy of anypreparation for pre-planned operations.

The policy also contains specific guidanceon the controversial area of police officers’responsibility to accept the risk in order toprotect the public. The document statesthat in most circumstances police officersare under a duty to take reasonable careof themselves and others. However, it addsthat ‘in protecting the public, individualsmay, very occasionally in extreme cases,


Officers havelimited control

over theirworking

environment

decide to put themselves at risk in actsof true heroism.’ In recognition of this,the guidance states that it would not bein the public interest to take any actionagainst an individual. At the sametime, the HSE recognises that:

… in such extreme cases, everyonehas the right to make personalchoices and that individuals maychoose not to put themselves atunreasonable risk.

It is this final qualification that stirredsome negative reaction in the press,most notably in the Daily Mail andwhich featured again in DavidCameron’s speech in December 2009.It may be argued that the HSE’s newpolicy has largely dealt with theConservative Party’s concernsregarding on-duty police officers andtheir obligation to prioritise risks to thepublic above risks to themselves. Itdoes appear that any attempt toamend the application of section 2 ofthe Health and Safety at Work Act willbe met with stern opposition by boththe HSE and senior police bodies.

Striking the balance is welcome forconsiderably clarifying the HSE’sapproach to the police service and thework it does. Further clarification canbe expected later this year when theACPO issues revised guidelines onparticular police operations.

What about corporatemanslaughter?

Whilst the policy guidance makesdetailed reference to the Health andSafety at Work Act, it makes nomention of the CorporateManslaughter and CorporateHomicide Act of 2007. In manyrespects, this is unsurprising given thatit is the Crown Prosecution Servicerather than the HSE which determineswhether to prosecute and actuallyconduct prosecutions for corporatekilling.

During the de Menezes trial, theprosecution alleged 19 failings in thepolice operation in the hours leadingup to the shooting. In sentencing the

Metropolitan Police following the jury’sguilty verdict, Mr Justice Henriquesdescribed the breach as a ‘corporatefailing with a number of failingscontributing to the tragedy’. Suchlanguage begged the question as towhether, had the shooting occurredafter the implementation of the 2007Act in April 2008, the PoliceCommissioner may have faced a moreserious charge.

The police service can rightly takecomfort from section 5 of the 2007Act, which specifically excludes thepolice from a duty of care whenconducting law-enforcementoperations ‘dealing with terrorism, civilunrest or serious disorder’ and facing‘the threat of attack or violentresistance’. In other policing contexts,however, the police service will owerelevant duties of care and will bevulnerable to prosecution wheresustained and/or repeated failingsgive rise to fatal consequences.

Higher expectations?

Although the HSE’s Striking the balanceguidance policy encompasses a moresensitive approach by the prosecutingauthorities to policing, it is clear thatthe authorities will insist on highoperational command and trainingstandards, and will carefully considerprosecution when there is evidence tosuggest those standards have notbeen met.


The guidancestates that itwould not be inthe publicinterest to takeany actionagainst anindividual

Matthew HarringtonPartner, BLM Bristoland BLM Cardiff

Jennette NewmanPartner, BLM London

Multi-party claims –reform update

Recession and legislative response – FinancialServices Bill 09/10

The recent economic downturn has promptedlegislation to regulate further the financial sector. Thecurrent Financial Services Bill seeks to do that generally.It provides for the setting up of a Council for FinancialStability, imposes reporting requirements on executiveremuneration and it could ban the short selling ofshares. These measures might be characterised intabloid-speak as ‘bashing the bankers’.

The Bill was brought before Parliament in lateNovember 2009 although at the time of writing it hadyet to complete its passage through both Houses.In addition to clamping down in this way, the Billintroduces new powers for collective consumer redressfor financial services claims. These provisions are acomplex (and probably hurriedly-prepared) mix ofprovisions with two objectives. First, they set outconditions in which a collective claim for redress maybe brought before a civil court. Second, powers willenable the regulator (here, the FSA) to require firms to


The Disclosure November 2009 edition anticipated that general consumerdisputes would be the lead area in which reforms would emerge in theorganisation of multi-party and collective claims. While there has been somefurther consultation, matters are progressing much more quickly in financialservices claims, where a new Bill sets out a specific regime for mass claimsgenerated in that sector.

set up collective redress compensation schemes (ienot court-based solutions). So far, these powers donot appear widely known or understood.

The provision of a right of action for collectiveredress here clearly demonstrates the government’spreferred sector-by-sector approach to the use ofthis procedural mechanism. There are to be detailedrules on whether the claim should be on an ‘opt-out’or ‘opt-in’ basis and on the body suited to representthe class of claimants.

The schemes approach in essence proposes that theregulator will be empowered to decide if there havebeen breaches of regulations causing loss toconsumers and – subject to conditions and furthersecondary legislation – to decide to set up acollective redress scheme. It will also beable to assess the compensation whichmay be due. This raises importantconcerns about independence andtransparency. Why? Because theregulator at the very least appears to beexercising all three main functions ofstate power:

Legislative – in that it sets theoperating regulations for companies inthe sector.

Executive – in that it is an agency of centralgovernment.

Judicial – in that it may require companies todetermine breaches and awards.

With a general election on 6 May, at the time ofwriting there is little time for the Bill to get throughParliament. However, perhaps it is likely to succeeddue to the fairly broad political consensus on theneed to tackle perceived excess in the bankingsector. If it does so – whether by formal debate or inthe end of session ‘wash up’ – then anyone currentlyengaged in a regulated financial services activitywith consumers must ensure that they fullyunderstand the likely impact of a potential opt-outclass action against them.

A further area of genuine concern should be that theBill is unequivocally retrospective. It defines anyregulated activity complained of to ‘include anactivity that was not a regulated activity when thecause of action arose but is a regulated activitywhen the collective proceedings order is made’.

Collective redress – the general perspective

As anticipated in the last edition of Disclosure, the

Department for Business consulted about widelydrawn powers of a new ‘consumer advocate’. Thepowers under consideration include the right tobring collective redress claims in England and Waleson behalf of consumers. The following legal regimes(among many others) were stated as being in scope:

� Consumer Protection Act 1987(consumer safety).

� General Product Safety Regulations 2005.� Package Travel, Package Holidays and Package

Tours Regulations 1992.� Sale of Goods Act 1979.� Supply of Goods and Services Act 1982.

Hence it is clear that a wide range of tortious andcontractual consumer claims could be subject to

new collective redress rules. This doesreflect the government’s stated sector-by-sector approach.

Clearly, further legislative reform wouldbe required in the different areas notedabove. But there are common principlesto be considered, and it is understoodthat in the meantime, there is ongoingwork within government to develop aframework document to assist the

various lead departments by setting out the issuesto be addressed when considering rights ofcollective action.

Conclusion

Although the imminent general election maypartially affect the pace of change, it looksincreasingly likely that the financial services sectorwill be the first area for collective or class actionclaims in England and Wales. The detail of theproposed regime raises some deep concerns –notably retrospectivity and separation of powers.

It is not yet clear whether, should there be achange of government, this approach wouldserve as a framework. If it does, however, thenbusinesses and insurers in other sectors whichcurrently experience group and multi-party claimsshould take careful note.


Alistair KinleyHead of policy development, BLM

Perhaps it is likely tosucceed due to thefairly broad politicalconsensus on theneed to tackleperceived excess inthe banking sector

Operation Genarch – a uniquefraud insight

In April 2010, 25 individuals were sentenced by HHJMorrow QC in Liverpool Crown Court for their partin a ‘crash for cash’ conspiracy scam. The ring leaderDarren Duvall received a prison sentence of three years.In total eight custodial sentences were handed down,together with a range of suspended custodial sentences,community orders, curfews and fines. The operationhas been a huge success for all involved in theinvestigation, defence and prosecution of this fraudnetwork from the initial civil defence through to thecriminal prosecution. However, the operation was notwithout legal challenges and there were many lessonsto be learned by the inquiry.

Setting the scene

In 2006, investigations began into claims forcompensation arising out of an alleged road trafficaccident (RTA) of dubious authenticity. Following this, anumber of RTAs with common themes were identified; allwere potentially linked. The claims related to allegedRTAs in the Liverpool area in 2005 and on eachoccasion the ‘fault driver’ was identified as an employeeof the policyholder. Rapidly, a small investigation into adubious RTA turned into a large scale investigation into120 claims for compensation with an estimated financialreserve of £1.5 million plus the identification of anorganised and calculated fraud conspiracy.

Civil and criminal litigation

Following a significant and fast paced civil investigation

into the claims presented, the scam started to unfold.At this point evidence had been gathered in the civilproceedings on a piecemeal basis. Some of the claimshad become litigated and some remained pre-proceedings. The scale and size of the investigationwarranted a strong strategy. A number of court orderswere applied for to allow for tight case managementand to strengthen the evidential position.

The orders included:

a An order for the linked cases to be run alongsideone another pursuant to Civil Procedure Rules 3.1.

b For a generic defence detailing the organised fraudto be filed and served pursuant to Civil ProcedureRules 17.

c Disclosure applications to include a non partydisclosure order.

With the cases running concurrently in the civil courtsand evidence emerging of the organised network, it wasbecoming clear that a crime had been committed andwas continuing to be committed through ongoinglitigation. In November 2006, given the economic valueand commonality of the claims, civil evidence achievedand links between the parties, a formal complaint ofconspiracy to defraud was lodged.


The scam

A number of RTAswith common themeswere identified.

Duvall offered thechance of an easy,quick and ‘clean’way to make money.

The conviction hasdelivered substantialsavings.

The ‘cash for crash’ scam

By October 2007, the police had conductedinterviews with those allegedly involved in thepurported genuine RTAs. The police and CrownProsecution Service (CPS) had identified cases andindividuals (including the ringleader) to target forcriminal prosecution. Following a number of dawnraids and arrests, the true scale of the network wasuncovered. Darren Duvall, a local claims farmeroperating his own referral company, DND claims,was recruiting people with company vehicles to beinvolved in staged accidents. With the promise of£500 to tell their employer they had been involvedin a fault accident Duvall offered the chance of aneasy, quick and ‘clean’ way to make money. If theclaims went through the individuals would receive afurther £500. He would provide details of accidentsand people who were to be presented as ‘claimants’(to fill the vehicles). Duvall would also mix up thefraudulent accidents – some would be fabricated;for others he would arrange for the vehicles tophysically come together. He would also refer theclaims to different local solicitors.

Following a raid on Duvall’s property the policeretrieved a ‘little black book of accidents’. He hadused this to record the details of contrived accidentsand to collect his network of co-conspirators. It isthis type of evidence that would not have beenachieved during the civil proceedings. It transpiredthat Duvall’s fraud spanned motor and publicliability claims, as well as referring fictitious‘claimants’ to accrue referral fees from solicitors.

Challenges

The police investigation spanned over 18 months.Managing the civil proceedings during a lengthycriminal investigation presented challenges including:

� Application for a stay of proceedings. It wassuccessful but the period of stay was limited.Civil judges are tasked with moving casesthrough the system and until an individual isformally charged it can be difficult to obtainstays of lengthy periods.

� There was pressure from the claimant’s solicitorsto move the cases on to a civil trial. Casemanagement strategies were adopted to slowproceedings down. A further task was managingthe number of legal representatives and theircase tactics.

� The civil defence team wanted to utilise theevidence achieved in the criminal investigationsto strengthen the civil defence. That would not be

forthcoming until the conclusion of theinvestigation or subsequent trial.

The criminal court experience

The police investigation was completed by October2009. The evidence and documents acquired duringthe defence of the civil claims was also being reliedupon as part of the crown’s case against thosecharged with conspiracy to defraud.

The evidence collated in the civil defence of theclaims, including telephone attendance notes,were under extreme scrutiny. This highlighted theimportance of properly managing and conductingthe civil litigation in fraud conspiracy cases.

The real success story

The operation delivered a number of messages andresults. Most importantly, investigations should becontrolled/properly managed and cases ultimately‘ring-fenced’. It is important to know what is to beachieved as this will dictate the handling philosophyrequired to achieve the desired results.

The conviction of the key individuals involved in thisorganised fraud, together with the discontinuancesand repudiations of many more claims that were notincluded in the criminal proceedings, has deliveredsubstantial savings. This case has also helped topublicise the issue of organised insurance fraud.Merseyside police have sent out a clear messagethat ‘insurance fraud is a crime’ which will not betolerated. HHJ Morrow QC, in delivering thesentences stated that insurance fraud was aparticular problem and sentences which act as astrong deterrent need to be delivered. This willunderline the message that such fraud is not avictimless crime.

The real success was demonstrated by how thewhole fraud operation succeeded through acollaborative approach. It took all stakeholders –from insurer, policyholder, investigators, experts andthe legal team – to work together with a passion anddesire for true justice. This collective insight resultedin the seemingly insurmountable legal challengesbecoming surmountable.


Sarah HillPartner, BLM Birmingham

Filling the gaps?New measures proposed for ‘legacy’ disease claims

This article considers three discretegovernment interventions with potentiallysignificant implications for asbestos claimsarising from ‘legacy’ industrial activity,namely:� Third Party (Rights Against Insurers) Act

2010.� Pleural plaques former claimants’

payments scheme.� DWP consultation ‘Accessing

Compensation’.

The third is probably the most controversial,since it features a proposal to set up anEmployers’ Liability Insurance Bureau (ELIB).

1. Third Parties (Rights againstInsurers) Act 2010

The new Act will, on commencement,replace the 1930 statute of the samename. Both allow a third party to makea claim against an insurer where thepolicyholder is insolvent or defunct. Thisprevents the claim from falling into thegeneral liquidation process.

The 2010 Act reinforces this mechanism byproviding that:� only one set of proceedings is now

required to establish both the liability ofthe insured to the third party and alsothe insurer’s liability under the policy

� the insurer’s defences and obligationsare clearly set out in the statute

� it puts disclosure of policy coverageinformation on a new statutory basis.

In addition, it confirms that liabilitiesassumed voluntarily (rather than tortiously)

by the insured should also be covered bythe mechanism. An example is that a legalrepresentative should be able to recoverlegal expenses incurred on behalf of asince-insolvent client who had the benefit ofa legal expenses policy.

2. Pleural plaques formerclaimants’ payments scheme

In late February 2010, nearly 2½ yearsafter the Law Lords held (in Johnston v NEIInternational Combustion Ltd [2007] UKHL39) that plaques are not compensatable atcommon law, the government announcedthat it would set up a compensationscheme for the condition. It will not,however, intervene by statute to reverse thefinding – in contrast to Barker v Corus UKLtd [2006] UKHL 20 and theCompensation Act 2006.

Plaques claimants in England and Waleswho had started (but not resolved) claimswhen Johnston was decided in October2007 will receive £5,000 each. Furtherdetails have yet to emerge, but the packageis likely to cost the government (ie thetaxpayer) around £30-35 million.

The announcement is not quite the endof the plaques saga. Leading insurersare continuing a judicial review ofScottish legislation which sought tooverturn Johnston. The Northern Irelandadministration is considering its approach.Different legal regimes within the UK willlead to forum shopping across the country.


Governmentwas committedto improving thecompensationprocess for

mesotheliomasufferers

3. DWP consultation ‘AccessingCompensation’

In announcing the plaques schemeabove, ministers reiterated that thegovernment was committed toimproving the compensation process formesothelioma sufferers. One of theirobjectives is to improve the success ratein tracing historic or legacy EL(employers’ liability) insurers in suchclaims.

Hence the DWP consultation sets outmeasures to improve the market-widetracing service operated voluntarily bythe ABI. These include the setting up ofa searchable register of new and futureEL policies, although the extent towhich the register will be populatedretrospectively with accurate andcomplete historic EL data is a matterfor debate. Searches would beadministered by a new tracing office,the ELTO. Save for the retrospectivedata, the ELTO concept seems to beaccepted by the industry, which islooking to take it forward in apositive fashion.

More controversial is the proposed ELIB.The government is:

Persuaded that an ELIB should formpart of the package of measures toimprove the lives of those who areunable to trace an old employer ortheir insurer.

In this model, an ELIB would be thecompensator of last resort and might beloosely based on the MIB, mirroring thecompulsory insurance requirement.

The proposed ELIB is controversial bothin scope and with regard to funding.The main problems in tracing policiesarise in mesothelioma claims. Hence, avery wide ELIB potentially covering alluninsured and untraced past and futureaccidents and diseases could be arguedto be excessively comprehensive.

The government seems to preferinsurance industry funding. It seemsattracted to the somewhat superficialargument that insurers would veryprobably have taken premiums for

policies that probably existed but cannotnow be traced. This argumentconcludes that as a consequenceinsurers generally should fund the fullcosts of a bureau.

Unsurprisingly, insurers are set againstthis approach, as evidenced by a veryclear press statement on the point fromthe ABI.

However, we are opposed inprinciple to the proposed ELIB. Itcannot be right that today’s law-abiding employers should have topay for their potentially uninsuredcompetitors or firms that now nolonger exist, and who may not havehad insurance.

Consultation on these matters closeson 5 May 2010. Interestingly, thegeneral election will take place on thefollowing day!

Where next?

The measures above are furtherevidence of the evolving legal responsesto compensating asbestos victims.Further evolution may need to beconsidered when the EL Trigger litigationis finally resolved. Proceduralimprovements such as the new Act, theELTO and the proposed ELIB can goonly so far. However, at the heart of thedebate is the substantive point offunding: how to balance the delivery ofcompensation (where it is merited) withfairness between current defendants andinsurers and their historic counterparts?

This question has been resolved in aparticular way in recent years, illustratednotably by Fairchild v GlenhavenFuneral Services Ltd [2002] UKHL 22and the Compensation Act. It will notnow be known until well after the 2010election whether discussion about anELIB might follow a similar pattern.


Brian GoodwinPartner, BLM Liverpool

The mainproblems intracing policiesarise inmesotheliomaclaims

‘Grime’ and punishment: how muchdoes the polluter really pay?

The Court of Appeal (CA) has provided furtherguidance for determining the appropriate level ofpunishment where an offender has pleaded guilty to anenvironmental offence.

Thames Water Utilities mistakenly released toxicchemicals into a South London river in September 2008killing approximately 7,000 fish and turning the water a‘milky white’. The Environment Agency (EA) reportedthat they had received a flood of complaints as localpeople had seen fish dying or in distress as a result ofsodium hypochlorite being spilled into the river. Thechemical is a form of bleach, which had entered theRiver Wandle during the cleaning of the Beddingtonsewage plant.

Previous editions of Disclosure have stated that it is anoffence to cause polluting matter to enter controlledwaters (s85 CPA 1991). The EA commented at the timethat the spill had been sufficiently serious to reverse 20years of conservation work in the River Wandle.

As a result of the incident, Thames Water was fined£125,000. An examination of the incident ascertainedthat it occurred as a result of a serious failure by thecompany, which was criticised for failing to carry out

any form of risk assessment before commencing thecleaning process which released the chemicals. Afterthe incident, Thames Water accepted responsibility andcooperated with the EA. Thames Water also pledged topay £500,000 to help rectify the damage caused to theecosystem, to contribute to the work of the conservationgroup as well as compensating anglers who enjoyed theriver. During the hearing, at first instance the court wasmade aware that Thames Water had 82 previousconvictions going back to 1991 for offences inconnection with the discharge of sewage from itspremises. In sentencing the company the recorder saidthat the starting point would have been a fine of£250,000, but reduced it to £125,000 after consideringvarious mitigating factors. In the CA Thames Waterargued that the recorder took too high a starting point,gave too much weight to previous convictions and failedto take sufficient account of the amount of money(£500,000) pledged by it in reparation – some of whichhad already been paid.

Reference was made to R v Anglian Water ServicesLimited [2003] EWCA Crim 2243, and the courtemphasised that there is a clear burden on watercompanies like Thames Water to ensure they do notcause the escape of polluting materials from sewageplants into controlled waters; they should conductappropriate and regular risk assessments in order toprevent likely events occurring; and there is to beprovision for the extent of the possible damage shouldsuch an event occur. In fact, the court suggested thatthere is a need for ‘fail safe systems’ where necessary.

The CA did not disagree that Thames Water’s previousconvictions could be regarded as aggravating theoffence. It acknowledged that it is difficult to providegeneral guidance as to the appropriate levels ofsentencing in similar cases. Alongside the need topunish, the court also acknowledged that there is a‘policy objective’ to encourage offenders to makevoluntary reparations.

On reading the judgment, it is also clear that the court isaware that in making a voluntary reparation an offenderis able to make a public-relations gain. From a financialperspective, offenders may be able to spread paymentsto a much greater extent than would be available shoulda fine or compensation order be imposed.


Fully considering all of these factors, the CA hasnow set out a principled approach for determiningthe appropriate level of punishment:

a The court should assess the seriousness of theoffence by reference to its facts, includingmitigation and aggravating factors.

b After consideration of the offender’s means, thecourt should identify the amount of notional fineafter a trial.

c The court should consider the making of acompensation order and extent to which theamount of any such order should be imposed inaddition to, or deducted from, the amount of thenotional fine.

d The court should also consider the extent towhich the offender has brought [the messagehome] to itself and the extent to which thatshould be reflected in any deduction from the

amount of the notional fine. The making of asubstantial voluntary reparation should generallybe regarded as a significant mitigating featurewhich typically should require some reduction inthe level of a notional fine.

e The court should also deduct the appropriatepercentage of discount for a guilty plea.

In this instance, the recorder’s notional fine wasbetween £250,000 and £300,000. The punishmentelement of that fine was between £75,000 and£80,000. Accordingly, the voluntary reparationmade by Thames Water was clearly exceptional, andthe recorder should therefore have reduced thedeterrent element of the fine to nil. Taking the figureat the bottom of the bracket for punishment, namely£75,000, and applying a discount for an early plea,the actual fine should have been £50,000.

Examining the facts, the CA decided that the fine of£125,000 was ‘manifestly excessive’ and would bequashed and replaced with a fine of £50,000.

It is therefore clear that the voluntary reparationmade by Thames Water was welcomed by the courtas it fitted snugly with the idea that polluters shouldbe encouraged to make voluntary reparation. This ofcourse coincides with the ‘polluters must pay’ ideal.Accordingly, this should be borne in mind byoffenders when facing prosecution and also byoffenders who are awaiting an environmentalprosecution.


Michael SalauPartner, BLM London

Further information

In this article I have concentrated on the main considerations of the CA, but if you have the time or the inclination,the judgment does make interesting reading. The court also referred to the Sentencing Advisory Panel advice to theCourt of Appeal (March 2000) and to the Sentencing Guidelines Counsel Definitive Guideline on OverarchingPrinciples (2004), both of which were acknowledged as still being relevant by the CA judges.

Readers may be aware that on a number of occasions I have suggested that in reality the level of financialenvironmental fines often do not fit the crime (in as much as they are often far from being a deterrent). In recentmonths, I have been surprised by the level of fines awarded by the courts, so it may be that things are changing. Ifso, then we may well see more voluntary reparation by environmental offenders in order to reduce fines and avoidthe making of a compensation order.

The judgment on the case is available at: www.bailii.org/ew/cases/EWCA/Crim/2003/2243.html

If it ain’t broke …Compensation, compensation and more compensation?

Section 1 of the Compensation Act 2006 was enactedwith the aim of reassuring those who undertookdesirable activities that they would not be leavingthemselves open to claims in negligence. It is widelyregarded as having failed to achieve its objective,leading to calls for further legislation. Mr JeremyWright, Conservative MP for Rugby and Kenilworth,had this to say when presenting his motion for theCompensation Act (Amendment) Bill 2006 in theHouse of Commons on 2 February 2010:

I propose that we amend section 1 of the 2006 Actso that when a court considers a claim of negligenceagainst someone who has done something for thebenefit of their community, it will not simply regardtheir public-spiritedness as one factor among manythat it may or may not take into account. Instead,

there should be a presumption that someone whohas engaged in that sort of desirable activity hassatisfied the relevant standard of care. The courtwould not be prevented from finding someonenegligent if they had gone about that desirableactivity in a wholly incompetent or irresponsible way,but it would start from the premise that those whoact to help their community should get a very strongbenefit of the doubt. I believe that that will succeedin sending to the public the message that section 1of the 2006 Act seems to have failed to send.

To illustrate the extent to which section 1 has failed toreach the consciousness of not only the general public,but lawyers as well, a search reveals only two judgmentsin which it is referred to. In Hobbs v Mott McDonald Ltdand Ministry of Defence [2009] EWHC 1881, a


consultant electrical engineer working in Iraqsuffered injury from a bomb blast whilst travelling ina standard production Land Rover. The claimantcontended that there had been a failure to takesufficient care for his safety because he should onlyhave been permitted to travel in an armouredvehicle. The judge decided that it was appropriate toapply section 1 as regards the use of a non-armoured vehicle on the basis that the work ofreconstructing the infrastructure of Iraq was adesirable activity. However, this was not conclusiveon liability. In dismissing the claim, the judge’s keyfindings from the evidence were that the point hadnot been reached at which the exercise ofreasonable care required the use of an armouredvehicle and also that the claimant had notestablished that if he had been in an armouredvehicle, he probably would not have suffered theinjury that he did (or that his injuries would havebeen less serious).

More recently in Uren v Corporate Leisure (UK) Ltdand others [2010] EWHC 46 (QB), (see p34) inwhich the claimant was injured whilst participating inan It’s a Knock Out!-type game, the judge wasrather dismissive of the significance of section 1:

It is also to be noted that it was common groundthat in the context of this case section 1 of theCompensation Act 2006 adds nothing to thecommon law. I should add that this accords withmy own view of the effect of the section.

To be fair, as was made clear at the time, thegovernment never intended section 1 to constitute achange in the law. It was always described as asimple re-statement of the existing law. The view ofthe judge in Hobbs was that its purpose was to drawattention to the principles expounded by The Houseof Lords in Tomlinson v Congleton Borough Council[2003] UKHL 47.

The messages emphasised in Tomlinson were thatthere is a personal responsibility upon individualswho voluntarily engage in inherently dangerousactivities and an absence of a duty upon parties inrespect of obvious risks. These principles have sincebeen reinforced by The Court of Appeal (CA) inCole v David-Gilbert and others [2007] EWCA Civ396 and Poppleton v Trustees of the PortsmouthYouth Activities Committee [2008] EWCA Civ 646.In Cole, the claimant fell and broke his leg afteraccidentally placing his foot in a hole on a villagegreen. The hole had been used for a maypole,which was sometimes a feature of the annual villagefête. The CA overturned the first instance judgmentin the claimant’s favour, finding that there was noevidence that the defendants were in any way to

blame in relation to the hole becoming exposed,and that (per Lord Justice Scott-Baker):

If the law courts were to set a higher standard ofcare than what is reasonable, the consequenceswould quickly be felt. There would be no fêtes,no maypole dancing and no activities that havecome to be a part of the English village green forfear of what might go wrong.

In Poppleton, the claimant fell whilst engaged inindoor climbing. The defendant was initially found tobe at fault for failing to warn that the matting thatwas provided might not be adequate to prevent theclaimant suffering from injury if he fell. This decisionwas, however, overturned on the grounds that,applying Tomlinson, the claimant engaged in theclimbing entirely of his own free will, there was aninherent risk in the voluntary activity and the risksfrom falling were obvious.

It is apparent from these decisions that the courts donot require the assistance of statute in order toachieve the required balance between risk on theone hand and factors such as the desirability ofactivities and the relative cost of guarding againstthe risk on the other. The fact that Tomlinson, Coleand Poppleton were decided in the claimants’ favourin the lower courts might be seen as a justificationfor Mr Wright’s bill, but the more recent first instancedecisions in Hopps and Uren suggest that themessage has filtered down and that furtherlegislation in this area is unnecessary.

In presenting his bill, Mr Wright stressed that therewas need for a change in the law because section 1had not succeeded in allaying people’s fears aboutbeing sued. He said that there had been a failure toclear snow or ice from driveways, garden paths andpavements during the freezing conditionsexperienced in January 2010 because of newspaperarticles warning the public that they might be liable ifsomeone was caused to fall as a result. As such, itseems that the problem may lie not with the lawitself, but with the manner in which it is reported bycertain sections of the press.


Simon MorrowPartner, BLM Manchester

A reduction in claimant’s costs?Cautious optimism for clinical negligence cases

Lord Justice Jackson’s review of civil litigation costs waspublished in January 2010 and widely welcomedamong the senior judiciary and the defendantcompensator community. His main recommendations tomake costs more proportionate (some of which requirelegislation) are to:� end recovery between the parties of success fee

uplifts and insurance premiums� introduce one-way costs shifting in favour of

claimants only� restore the claimants’ stake in the system, by making

them responsible for uplifts and� balance this with a 10% increase in damages for

pain and suffering.

A recommendation which would be particularlywelcome for defendants is that the case of Lownds vHome Office [2002] EWCA Civ 365 on proportionalitybe reversed:

I propose that in an assessment of costs on astandard basis, proportionality should prevail overreasonableness and the proportionality test shouldbe applied on a global basis … the court shouldthen stand back and consider whether the totalfigure is proportionate. If the total figure is notproportionate, the court should make anappropriate reduction.

If implemented in full, the most telling effects should begreater numbers of cases resolved pre-action and thereduction of claimant costs to levels which are moreproportionate to damages.

While there is unanimous support acrossthe clinical negligence defence sector forthe Jackson review, caution should benoted as his eight recommendationsspecific to clinical negligence cases (withthe main ones noted below) are a mixedbag with some likely to place a heavyburden on defence organisations.

� Pre-action moratorium for settlement.

� Harmonisation of directions.� Costs management piloting.� Penalties for late disclosure of health records.� Four months for protocol response.� Implementation of the NHS Redress Act 2006.

A three month moratorium on the issue of proceedingsis recommended where the defendant states that it doesnot admit liability but is prepared to settle the claim.This provision reflects much current practice. However,the proposed costs sanction – that if the claimantcommences proceedings during the three-monthperiod, he is not entitled to cover the costs referable tothose proceedings during the three-month period – isarguably not strong enough. Something more akin to awasted costs order, to include the wasted costs of theproceedings, would be more appropriate.

Case management directions should be harmonisedacross England and Wales for clinical negligence cases.

Costs management for clinical negligence cases shouldbe piloted. It is proposed that the pilotshould commence on 1 June 2010 andrun for two years. Claimants would workwithin a budget cap of £15,000 up tothe date of letter of claim and a further£15,000 to the start of proceedings. Acosts budgeting mechanism would comeinto operation where the claimant soughtto exceed these thresholds. Pre-issue andpost-issue costs budget questionnairesare proposed. Of some concern is that


Key recommendations� Pre-action stay to settle.� Uniformity of directions.� Costs management pilot.� Penalties for late disclosure

of health records.� Four months for letter of

response.� NHS Redress Act 2006.

Focus on reformComments on Lord Justice Jackson’s Civil Litigation Costs Review

the prospective defendant would not be given noticeor subsequently be made aware of a pre-actioncosts budget application and, in the case of a post-issue costs budget hearing, the defendant will not benotified of the hearing or permitted to makerepresentations, but would be permitted to apply tovary a costs budget order, though such applicationswill be discouraged. Given the non-participation ofthe defendant in costs budgeting hearings, thecourts must be urged by the defendant sector tobear in mind LJJ’s proposals on changing the lawrelating to proportionality of costs to damages.

Those recommendations which will requireenhanced case and information handling bydefendants include:

Financial penalties for a health authority which,without good reason, fails to provide copies ofmedical records requested in accordance withthe protocol.

Following a letter of claim, the protocol period for aletter of response should be increased from threemonths to four months. This recommendation followsrequests by MDOs to extend the period fordefendants to investigate cases pre-action. Thisextension may be helpful, though it is questionablewhether a defendant who first receives notice of apotential claim by a letter of claim would be able toaccess the records, obtain factual evidence from thehealthcare practitioners involved, instruct expertevidence on breach of duty and causation and drafta full letter of response which would be reliedon subsequently, within four months. Thisrecommendation must be cross-referenced tochapter 39 paragraph 6.2 of the review, where LJJrecommends that CPR rule 25.1 should be amendedto permit any party to apply to the court if anotherparty fails to comply with a pre-action protocol,thereby causing serious prejudice to the applicant.The short extension of the time period for the letter ofresponse may well be a two-edged sword.

The NHSLA should obtain independent expertevidence on liability and causation during the fourmonth period allowed for the letter of response,where the NHSLA is proposing to deny liability.Similar concerns as in the previous paragraphs apply.

The MDOs should each nominate an officer towhom claimant solicitors could, after the event,report egregious cases of defendant lawyers failingto address the issues. A quite extraordinaryrecommendation given the extent of complaints bydefendant solicitors that claimant solicitors do notprovide sufficient information timeously at the pre-action stage.

Jackson LJ also recommends that the NHS RedressAct 2006 should be implemented and thatregulations to cover matters such as the upper limitfor financial compensation, what legal costs shouldbe paid, what legal work those costs should coverand so on should be drafted following consultationwith claimant and defendant sectors.

Hopefully, not too optimistically, it appears that realmomentum is developing to implement the LJJrecommendations. Meanwhile, defendant clinicalnegligence litigators should now begin to proposeapproaches to case handling and resolution of costsmatters to claimant solicitors in line with the thrust ofthese proposals.

Have the motor ‘costs wars’ finallysurrendered to MoJ reforms?

In 1999 the Civil Procedural Rules introduced theconcept of proportionality into costs. It promisedmuch but failed to deliver. When additional liabilitiesbecame recoverable from an unsuccessful thirdparty, both claimants and defendants tested theboundaries of the rules which led to a flurry ofcomplex and sometimes contradictory decisions.The resulting legal combat which raged over 11years became known as the ‘costs wars’.

Attempts have been made to reduce the conflict.Fixed recoverable costs removed many low valueRTA claims from the costs process altogether. Fixedsuccess fees stopped arguments in RTA, EL(employers’ liability) and disease cases about howadditional liabilities should be calculated. However,these small steps did not address the majorproblems with costs: escalating hourly rates, nocontrol over how costs are incurred and theinadequacies of the assessment process fordealing with disproportionate costs.

Clearly, something had to be done. To be fair,nothing post-CPR had caused deserving claimantsto get their damages more quickly; all thathappened was that their lawyers got richer trying.That enrichment, though, was out of proportion.Recent analysis of data, immeasurable at the time,laid this bare.

Therefore, would it be possible to devise a single


Gary AllisonPartner, BLM London

procedure which could speed up thetransmission of damages from insurer toclaimant at a significantly reduced cost?The answer, hopefully, is the Pre-actionProtocol for Low Value Personal InjuryClaims in Road Traffic Accidents (the

MoJ reforms) which will extend fixed costs to more RTAclaims. The idea is to create simplicity where thereis complexity.

The reforms will apply to RTA claims where:� the accident took place on or after 30 April 2010� the claim includes damages in respect of personal

injury� the claim has a value of no more than £10,000 on

a full liability basis excluding interest� there is no argument on liability (unless it is disputed

that the claimant was wearing a seatbelt).

Cases will flow through three stages.

Stage 1The claimant provides full details of him/herself andthe incident, and the defendant must respond with aliability decision. If liability is admitted, stage 1 fixedcosts must be paid.

Stage 2The claimant obtains a medical report. The claimantcan apply for an interim payment or attempt to settlethe claim. A settlement pack is prepared by theclaimant and sent to the defendant with an offer. Thedefendant can accept the offer or make a counter-proposal. If the case settles at this point both stage 1and 2 costs are paid.

Ideally, the number of claims not settling by the end ofstage 2 will be small. If the claim is not settled it moveson to stage 3.

Stage 3The claimant will prepare a court proceedings packwhich (eschewing the paperless format so far) includeshard copies of all relevant documents and sealedenvelopes containing both parties’ final offers. The courtwill then assess the amount of damages. Stage 3 costswill become payable. If the claimant beats thedefendant’s offer in the envelope, he/she recovers stage3 costs; if not, he/she is liable for the defendant’s costs.

Will it work? The changes will affect the vast majority ofRTA claims involving an injury, so irrelevance is unlikely.Both claimant and defendant lobbies have welcomedthe changes, so denial and avoidance should, in themajority of cases, be ruled out.

The reforms are only as good as their weakest link. It isnot beyond the realms of possibility that claimants’

representatives might explore means of maximising feesfrom the process. This means getting out of the processand into orthodox litigation (goodbye, for now, topredictable costs, hello to surprisingly extensivepreparation time on an hourly rate) or getting to stage3 (hello, for now, to 100% success fees and goodbyeto arguments about premature issue).

Exploring this scenario, already a weak link hasappeared: the early expectation that the majority ofstage 3 assessments will be on paper will underminethe entitlement in the rules that on request a claimantmay have an oral hearing. An additional £250(£500 with a success fee) for what might be a briefpreparation and 15 minutes of advocacy at the localcourt does have its attractions.

Insurers have the means of helping themselves.Properly resourced teams of handlers taking wise andproportionate decisions within the process, assumingthey wish to embrace it, should save on indemnityspend. Anything less will cause claims to escape(increasing expense) into litigation or to advance tostage 3.

The sheer scale of claims affected by the reforms andtheir radical nature will mean that every link will betested with satellite litigation. Each case will have adomino effect costing millions of pounds. Seeking thebest advice on how to identify and avoid potential trapsin the detail of changes the will help. So much for asingle solution and simplification.

Controlling costs in the Technologyand Construction Court (TCC)

What did Lord Justice Jackson, a former head of theTCC, have to say about controlling costs in that court?He reported a feeling of general satisfaction amongusers of the TCC, but made the following specificrecommendations:

1 Additional measures to control costs incurred


Victoria CargillHead of costs, BLM Manchester

Tony WaltonPartner, BLM Stockton-on-Tees

through the Pre-action Protocol for Constructionand Engineering Disputes, including limiting thelevel of detail required in letters of claim/response and that the parties generally bediscouraged from providing documents orexpert reports.

Proportionality is certainly important, but theprotocol is an effective means of narrowing issues indispute and promoting settlement. By reducing therequirements on parties to explain their position andby discouraging them from sharing documents andexpert reports, there is a real danger that itseffectiveness could be reduced. It is hoped that forthose who wish the protocol to work as it wasoriginally conceived, there will be no disincentive tothe provision of information that supports their case.

2 LJJ encountered a widely held view thatpleadings and witness statements in TCC casesare too long. He recommends requiring partiesto rewrite ‘prolix’ statements of case or that thetrial judge disallow costs for pleadings andwitness statements that are unnecessarily long.

Encouraging brevity in pleadings should bewelcomed; crisp and concise pleadings savethousands in costs and one bad apple can spoil thebarrel. Care is need though; requiring a party to‘replead’ is onerous and should not be done lightly.A deft touch is required to control the obviouspotential for argument and so as not to encourage aparty to apply for such an order in cases where arequest for information would remedy anyuncertainty in the pleaded case.

Witness statements are a different beast but it is trueto say they can be unfocused and they aresometimes used to flag up documents that thewitness had no part in creating. There are manyreasons for that, including that statements areprepared without sight of the other party’sstatements and at a time when it may not be certainwhat all of the factual disputes are going to be. Thereport does not address these points but it doesacknowledge that a restrictive attitude towards theuse of supplemental statements encourages theparties to include material of peripheralimportance. It recommends a more flexibleapproach. Even so, complex cases will continue todemand lengthy statements.

3 LJJ considered requiring lists of issues inorder to clarify the matters in dispute. Hisrecommendation is that such lists remainoptional and if they are used, they contain keyissues only. The reality is that lists of issues oftendo not assist. Frequently they simply cannot be

agreed because one party advocates a list of keyissues while the other wants a ‘micro list of everyconceivable issue’ (as LJJ puts it). Such lists willtherefore only be helpful if all of the parties wantthem to be. The alternative is that the court takea more interventionist approach at an earlystage in order to identify the key issues itself,but there appears to be no appetite forthat approach.

4 The cost of standard disclosure in largecommercial cases was identified as aparticular problem; this is certainly true ofconstruction disputes.

In other types of commercial cases the issues andevidence are often discrete. This has created anappetite for limited disclosure followed by requestsfor specific disclosure. LJJ recommends a ‘menuoption’ allowing the parties and the court to selectthe most suitable approach. The difficulty forconstruction cases is that the issues and evidencerequired are often wide ranging. Perhaps for thisreason, LJJ suggests that the current approach islikely to remain the norm in the TCC.

Given this reality, the report may have missed anopportunity to consider recommendations on howstandard disclosure is provided. The extent to whichdocuments are organised and listed accuratelyvaries enormously. Whatever the reasons for that,in multiparty disputes the effect on costs canbe significant.

5 LJJ identified a failure by the TCC to provide acost-effective service in lower-value constructioncases. The report recommends making better useof the county courts for cases of modest value.Cost fixing or capping may even be used forcases worth up to £25,000.

The success of adjudication has shown that a roughand ready approach can provide better access tojustice in cases of modest value, and provided eachcase is managed appropriately, the availability of amore cost-effective service should be welcomed.

Will the recommendations be adopted?

The government is considering LJJ’s report, but thereis no timetable for implementation. Nevertheless,many of its recommendations, such as those relatingto the protocol and pleadings/witness statements,concern existing court powers. Thankfully, thereport’s influence is already being felt.

Peter StockillSolicitor, BLM London


A tangled web: privacy, principles… or publish?

One of the most important remedies for aclaimant seeking to protect his privacy isthe interim injunction. This remedyinevitably impacts on that core democraticvalue of freedom of speech, and so thecourts, when faced with an application fora pre-trial injunction, has to carry out the‘balance of injustice’ test: which party willface the greater injustice if an order isgranted or refused?

In January 2010 an application for aninjunction was made by footballer JohnTerry on the basis that confidential orprivate information was about to bepublished and that there was no validjustification for the disclosure. As is nowwell known, Terry’s application failed andthe News of the World went on to splash itsstory of his affair with an ex-team-mate’sformer girlfriend.

The case highlighted some of the mainissues a court will consider in reaching itsdecision and served as a reminder of whatis required and expected by the courts fromclaimants when seeking such injunctions.

The application was made at a privatehearing, on an anonymous basis (Terrywas referred to as ‘LNS’ in the High Courtproceedings), without notice (the source ofthe rumour was unknown and the mainpurpose was to serve the order on themedia, in accordance with the‘Spycatcher’ principle whereby thirdparties served with the order must alsocomply with the injunction).

Terry sought to prevent the publicationof the very fact of the relationship,(unspecified) details of that relationshipand (unspecified) photographs relating tothe relationship. In addition, not only wasTerry seeking anonymity for himself and‘the other person’ in the relationship (aninevitable request given the very nature ofprotecting private information), but herequested that the entire court file besealed, that a super-injunction be imposed(preventing the reporting of the existence ofthe proceedings) without any return date,and, contrary to the usual procedure, thatany third party served with the order (ie themedia) would not be required to be servedwith a copy of the materials read by thejudge or a note of the hearing.

Why he failed

The refusal to grant an injunction hadmore to do with how the case wasactually brought.

The application was rejected on thegrounds that the nub of his complaint wasin reality to protect his reputation. Terry’shigh profile and lucrative sponsorship dealswere a relevant factor whilst there was noevidence of any personal distress (andindeed Mr Justice Tugendhat referred toTerry’s ‘robust personality’). It has long beenestablished (since Bonnard v Perryman) thatin defamation claims no prior restraint isavailable where the defendant says heintends to rely on the defence of justification(namely that it is true).


The concernsexpressed onTerry's behalffor the otherpeople were

unlikely to havebeen altruistic

Tugendhat J went on in any case toprovide his views in the event that thishad been a legitimate privacy claim.On an interim injunction, a claimantmust prove that he will probablysucceed at trial. Terry would have failedon this test on the grounds of thepotential public interest defence. Inaddition, Tugendhat J held that as amatter of discretion the potentialadverse consequences of refusing aninjunction, on the available evidence,were not severe and damages would bea sufficient remedy.

Other failings

The judge was less than enamouredwith the available evidence which was inthe form of a short witness statementfrom Terry’s solicitor. Importantly, this inturn contained evidence on Terry’sbehalf given by two of his unnamed‘business partners’. Such ‘double-hearsay’ evidence inevitably carried farless weight. There was reference toother ’interested persons’ (presumablyTerry’s wife and children) whose rightsof privacy would be affected, yet neitherthe ‘other person’ nor the interestedpersons had provided witnessstatements let alone been joined asapplicants. The judge felt that theconcerns expressed on Terry’s behalf forthe other people were unlikely to havebeen altruistic. The business partners(and not the solicitors with theirrequisite duties to the court and theskills to take witness statements) hadspoken with the ‘other person’. She hadexecuted a 15-clause confidentialityagreement and side letter confirmingshe considered these matters to beprivate and did not want it to becomepublic. The evidence was unverified,obtained in unknown circumstances,and their aim was to protect Terry’sreputation.

Lessons to learn

Any applicant for interim relief owesduties of full and frank disclosure to thecourt. This is more so when no notice isgiven to any other party and so thejudge does not have the benefit ofhearing submissions in opposition.

When it comes to privacy injunctions,there has to be sufficient evidence of athreat to publish. The claimant (andother parties on whose behalf the rightis being asserted) should be preparedto give direct evidence (words shouldnot be put into the mouth of a witness)in the form of signed witness statementsor give undertakings to provide signedstatements at the return hearing.

Super-injunctions are very much theexception to the rule (for example incases involving national security andrisk to the lives of others). Their aim isto prevent an alleged wrongdoer frombeing tipped off. The basic principles ofopen justice require that good reasonsare required to depart from the norm.

Where, as is often the case with privacyinjunctions, it is intended to bind themedia in accordance with the‘Spycatcher’ principle it is incumbenton a claimant to give notice to anysuch non-party on whom he intends toserve the order. This enables the courtto have the benefit of submissions fromthe media and more accurately assessthe evidence. In Terry’s case, the factthat the media was denied theopportunity to argue any public interestdefence in fact worked against him –the judge was unable to test such adefence and concluded it would havesome merit.

Given that an interim injunction in thisarea of law very often results in a claimbeing concluded (either an injunction isrefused and so the claimant’s reasonfor bringing the claim is gone: the catis out of the bag, or an injunction isgranted and the newspaper has littlereason to fight to trial as the story’scurrency has often passed), it is vital toinvolve lawyers at an early stage, to getthe procedural aspects right and toensure that the evidence is in order.

Monica BhogalSolicitor, BLM London


The basicprinciples ofopen justicerequire thatgood reasonsare required todepart fromthe norm

It is said that one measure of a civilisedsociety is how it treats its elderly members.There is a national debate about care,which leans towards how we look afterolder people. Although it is a small part ofthe overall care picture, the funding andprovision of care to those injured by a tort– whatever age they may be – is a keyconcern to compensators and insurers.This article takes a broad look at recentdevelopments.

In 1983, 15% of the population was ofretirement age or above. Twenty five yearslater this had risen to 16%. A single percent change may not seem a lot but itmasks changes in age spread nationally. Infact, in 2008, the retirement agepopulation group was 1.5 million peoplegreater than in 1983. A further 25 yearson, the official projection is that the over65s will, by 2033, rise to nearly one infour of the population (23%) with the over85s numbering around 3 million, or nearly5% of the national population.

The cost of caring for the elderly is a keyconcern for all political parties,particularly given that public sectorspending is likely to be constrained overthe medium term due to the recession.Moreover, the availability of future taxationto fund care is likely to diminish simplybecause there will be fewer people ofworking age who would pay to fundservices via general taxation.

We need to set the position of thosetortiously injured and requiring care withinthis broader canvas. First, one wouldnever wish the consequences of a seriousinjury on anyone. Injured people have aright to adequate care and to claim for thecosts of its provision. Having an insureddefendant or state-funded tortfeasor topay for that may put these individuals in adifferent position to the rest of thepopulation in so far as funds can bedelivered in full to pay for care for the

remainder of their lives. Second, theperiodical payment mechanism for carecan offer complete protection againstmortality risk. Such benefit is not availableto the general population.

Care claims are submitted and paid on thebasis that regimes attested by experts willbe put in place for the longer term. Despitethis, those paying have simply no way ofknowing whether care is implemented infull, in part, or not at all.

Some may argue that this state of affairs isfit and proper in a common law setting inwhich damages are the claimant’s tospend as he or she sees fit. An alternativeand equally respectable argument is that,as a matter of policy, it seems fairly strangethat the single most costly element ofcompensation in a serious personal injuryclaim is not more closely vetted after theaward has been made.

Case law and government policy have yetto tackle these arguments satisfactorily. Theline of thought which sought to require tortclaimants to seek local authority provisionof care has, following Peters v EastMidlands SHA [2009] EWCA Civ 145, nowlargely dried up. Recent moves bypolicymakers to examine care in tort claimshave proved largely fruitless. For example,the Ministry of Justice’s 2007 consultationon damages attempted to study it in depthand to build on useful legal research onthe interface between damages-fundedprovision and state care. The outputs (July2009) left the topic very much in the longgrass, requiring ‘further consideration todetermine whether any further action in thisarea is appropriate’. A recent consultationfrom the Civil Justice Council looks toimprove evidence in care claims but doesnot address the point of how the moneymay actually be spent and deployed post-settlement.

The broader debate is very much alive,

Recent movesby policymakers

to examinecare in tortclaims have

proved largelyfruitless

Who cares for older people?Who pays?


This projectgoes to theheart of thewelfare state

however. Various governmentdepartments have produced green andwhite papers on care generally, and inlate February 2010 the LawCommission launched an importantconsultation on wholesale reform ofthe public law of adult social care. Thisproject goes to the heart of the welfarestate and examines statutes going backto the post-war era.

Tort claims are but a small part of thisnational debate on care. They arefunded in full from the outset byinsurers and compensators. Thatmakes them dramatically different tothe majority of social care needs whichare funded on a somewhat ad hocpay-as-you-go basis from public funds,taxation and private savings.

The small cohort of tort-funded carecases could provide invaluableevidence about how care is paid for,

how it changes and how resources aremanaged as needs evolve. Suchevidence could inform a genuinedebate on care provision and funding.Securing such evidence wouldrequire a step change in trust andcollaboration among stakeholdersin serious claims. That should beachievable if the prize on the one handis a system of sustainable care forthose who need it most and onthe other it is the confidence thathundreds of thousands of pounds ofpolicyholders’ or taxpayers’ money isbeing properly spent on genuine needsas pleaded in these cases.


Alistair KinleyHead of policydevelopment, BLM

Disclosure: watching briefLegal updates and key changes

Asbestos compensation – minimal andmaterial

In Smith v Deanpast (Newcastle CC, 18 March 2010)HHJ Walton adjudicated his first case following hisdecisions in Newcastle County Court in Beddoes vVintners (2 March and 14 July 2009), which formedlead actions on whether minimal asbestosis amountedto material damage.

Mr Smith had a 15% respiratory disability. He wasobese and the defendants contended that this wasresponsible for his disability. The lung function testswere normal. The scans confirmed asbestosis, foldedlung and visceral pleural thickening.

The asbestosis affected less than 1% of the lung and didnot have a material effect on breathing. Any ‘tiny’ deficitwould be compensated by other areas of healthy lung.The folded lung and visceral pleural thickening did notamount to damage.

The remaining dispute rested upon whether the pleuralthickening was ‘diffuse’. The area of pleural thickeningwas less than the ‘old’ IIAC test of 25% coverage ofeach lung and Dr Hind’s test of the ‘size of a lady’shand’ (8cm x 10cm). This was not ‘diffuse’ and notcausing any disability.

HHJ Walton did not consider Mr Smith had a materialinjury and the claim was dismissed.

A ‘sword’ for the aggressive claimant:Bole v Huntsbuild Ltd [2009] EWCA Civ 1146

Disclosure edition 14 (November 2009) included acommentary on ‘Fit for purpose’ in relation to the DPA.This was an examination of Bole v Huntsbuild Limited &Another [2009] EWCA 483 (TCC). Feedback suggests

that this was of interest to many readers as it provided anumber of key points to consider in dealing with claimsconcerning defective properties and, more specifically,where breach of the Defective Premises Act 1972 hasoccurred. In Huntsbuild, the judge concluded thatbecause of the serious nature of the defects, the housewas not fit for habitation and that the consultants hadfailed to act in a professional manner and thereforefailed to discharge their obligations under the DPA. Inaddition, he also found against the contractors who werein breach of contract because they failed to build theproperty with adequate foundations contrary to the Act.

More recently, this case went before the Court ofAppeal (CA) which upheld the Bole claims. Perhaps, notsurprisingly, the court fully endorsed His Honour JudgeToulmin’s original judgment.

Readers will remember that the original judgmentconsidered whether or not the property was fit or unfitfor habitation. It is now clear that the fact that someone


Darrell SmithPartner, BLM Manchester

is living in the house does not of itself make ithabitable for the purposes of the Act. The problemsencountered by the homeowners arose as a result ofthe foundations being dug to an inadequate depth.Accordingly, heave occurred as a result of theremoval of trees during the preparation of theground prior to the construction of the property.However, the problems could have been avoided ifthe foundations had been dug to a sufficient depth.Consultants and their insurers should be aware thatit was the engineer and not the contractor who borethe majority of the claim, as the judge consideredthat it was not for the contractor to determine thedepth of the foundations.

In the CA, the engineers attempted to convince thecourt that the property was inhabitable. The courtdisagreed and reference was made to the fact thatthe owners had to vacate the property for a periodof time whilst repairs were being carried out. Inorder to support their argument, the engineers alsosought to argue that the defects should be examinedindividually to determine whether or not they madethe property uninhabitable. However, the courtpreferred to take a ‘macro’ view and consider thedefects in their entirety. Essentially, it consideredthat there was one major defect (inadequatefoundations) and all defects ultimately arosefrom the inadequate foundations.

As mentioned, there is no doubt that claimants willbe seeking to rely on the Defective Premises Act torecover from defendants where claims are oftendifficult to pursue. Recently, a client requested theexamination of a defects guarantee policy whereclaims for consequential losses were excluded. Itmay well be that a claim pursued under the DPAwould overcome such exclusions. Variouscommentators have suggested that this judgmentshould be welcomed; that of course depends onwhich ‘side of the fence’ this is viewed from.However, it is fair to say that the judgment iscertainly a ‘sword’ for the aggressive claimant.

Discount rate for lump-sumawards – news from Guernsey

Under the Damages Act 1996, the Lord Chancellorhas the power to set the discount rate to be used forderiving multipliers to value claims for future loss

and expenses. The rate is presently 2.5%, set in2001, and it applies to the UK, but not to theChannel Islands.

The rate has been unsuccessfully challenged in theUK courts in recent years, for example in Warriner vWarriner [2002] EWCA Civ 81 and again in Cookev United Bristol Healthcare NHS Trust [2003] EWCACiv 1379. Arguments similar to those used in thesecases re-emerged late last year before the Guernseycourt in Helmot v Simon (Royal Court of Guernsey,14 January 2010). Its facts are unremarkable andinvolve serious head, brain and upper limb injurysustained by a cyclist. Liability was admitted in full,hence the case turned on the quantification of futurelosses.

Given that the Damages Act 1996 does not applyin Guernsey, the claimant was able to run acomplex argument (based on inflation rates andinvestment returns) to press for different rates ofdiscount to be applied to different heads of futureloss. Essentially, the rates sought were 0.5% for nonearnings-related losses and a negative rate of-1.5% for earnings-related losses. Claimant expertsincluded accountant Rowland Hogg (who had actedas expert in the unsuccessful challenges to the 2.5%rate in the UK) and former UK Government ActuaryChris Daykin.

Judgment was given on 14 January 2010. The courtfound that it should start with the UK rate of discountof 2.5% and adjust it for factors specific to Guernsey.On the evidence available, such adjustment was tobe 1.5%, which gave a discount rate of 1%. Thisrate, however, was found to apply to all heads ofdamage. The award which resulted from using the1% rate was in the order of £9 million.

These findings do not, obviously, affect the rate tobe used in UK claims. However, UK insurers shouldnote the case as the first use close to home of alower rate of discount for lump-sum awards.Whether the case is appealed and/or whether thearguments and evidence presented by Messrs Hoggand Daykin resurface in the UK courts remains to beseen. BLM will keep a watching brief on the matter.


Alistair KinleyHead of policydevelopment, BLM

Michael SalauPartner, BLM London

Victory in CA forces ‘replay’ incredit hire case

Within litigation, the tactics normally used by the credithire organisations (CHOs) in relation to rate argumentshas been to refuse to settle for spot hire rates evenwhere claims involve a pecunious claimant, andcontrary to the authorities. Instead they argue that thedefendant’s evidence fails to discharge the burden ofproof as to spot rates. The judgment, handed down inMarch 2010, confirmed the level of evidence expectedto discharge the burden was much lower than theCHOs were suggesting. The judgment is likely to resultin them having to adjust their strategies and attitude tolitigation. It has also clarified one of the ‘grey areas’ ofcredit hire which led to inconsistency in the judiciary.

Darren Bent v Highways & UtilitiesConstruction Ltd [2010] EWCA Civ 292

Lord Justice Jacob, Lord Justice Leveson and Mr JusticeBriggs allowed the appeal, sending the case back to thelower court for a retrial.

In Bent, the first defendant’s driver was involved in aroad traffic accident in February 2007 with a Mercedescoupé driven by Darren Bent, a professional footballer.The first defendant was insured by the seconddefendant. Liability for the accident was conceded.Mr Bent was referred to the CHO, Accident Exchange,and hired an Aston Martin DB9 at a cost of £573.28per day for 94 days until repairs were completed. Aclaim for hire charges for £63,406.90 was submittedfor payment. Challenges were raised but settlement wasnot agreed; proceedings were issued.

The issues were:

1 Mr Bent confirmed that he also owned a CadillacEscalade but needed to hire an alternative as thatvehicle was unsuitable for travel to London/footballtraining. The defendant argued it was unreasonableto hire when another vehicle was available for use.

2 The vehicle hired by Mr Bent was better than thatwhich he owned.

3 In accordance with Dimond v Lovell [2002] 1 AC384, the full credit hire rate was not recoverable asit included additional services not recoverable atlaw. Mr Bent was limited to recovering the spot rateonly as he did not fall into the exception of beingimpecunious as created in Lagden v O’Connor[2003] UKHL 64. Spot rate evidence was obtainedfrom rate surveyors, Autofocus Limited.

The trial

The matter proceeded to trial in July 2009 atCambridge County Court before HHJ Yelton.He found:

i It was reasonable to hire despite the existence of theCadillac Escalade.

ii It was reasonable to hire the vehicle hired.

iii He disregarded the spot rate evidence obtained bythe defendants on the basis that it was not rate


evidence of the time at which the claimant washiring. He therefore went on to award the fullcredit hire rate and gave judgment for the totalhire claimed.

The grounds for appeal

Permission to appeal to the Court of Appeal (CA)was granted in October 2009. The main issues tobe considered were that:

i The judge was wrong to award the full hirecharges contrary to Dimond as the claimantconceded he was not impecunious.

ii The judge imposed a wholly unrealistic standardof proof upon the defendants in relation to theadduction of spot-hire rate evidence.

Furthermore, guidance was needed to confirmthe standard of evidence to be produced todischarge the burden placed on defendants aslower courts were providing conflicting decisions.

iii The judge erred in considering the claimant’sknowledge in isolation when determiningwhether he had failed to mitigate. The realbenefactor of the litigation was the CHO, andthey should not be able to hide behind theclaimant and argue he has acted reasonably ashe did not know any better.

The respondent’s notice

Following receipt of the permission for appeal, therespondent served a notice in which they indicated awish to include new evidence as to allegations whichAccident Exchange Limited were making over theveracity of evidence obtained by Autofocus. Theywished to argue that even if HHJ Yelton excluded thespot rate evidence on an incorrect basis then heought to have excluded it when considering thisfresh evidence.

The judgment

The matter was both heard and written judgmentwas handed by the CA in March. The judgmentconfirmed:

i Authorities establish that in the case of apecunious claimant, the damages awarded arenormally to be assessed at spot-hire rates – therate at which a broadly similar car could be hadon the market.

ii The heart of HHJ Yelton’s reasoning, thatevidence of the spot hire rate position at a

somewhat later date than that of the hire wasirrelevant, was a mistake. When assessingvaluations, courts often have evidence of pricesof the same or similar things at different datesand have to make appropriate adjustments.Evidence of the spot rate a year or so later thanthe relevant date is likely to throw considerablelight on what the spot rate would have been atthe time.

iii One should not be hypnotised by any supposedneed to find an exact spot rate for an almostexactly comparable car. The replacement needbe no more than in the same broad range ofquality and nature as the damaged car. A judgewho considers a bracket of spot rates for carsbetter and worse and aims for a reasonableaverage would not be going wrong.

iv The judge had erred in dismissing the spot rateevidence and the case would therefore have tobe remitted for a retrial at which it would beopen to both sides to adduce what evidence theychoose about spot rates. This would allow therespondent to attack the defendant’s spot rateevidence and therefore no ruling was made onthe application for fresh evidence containedwithin the respondent’s notice.

v The court gave no consideration as to theground of appeal arguing that the CHO’sknowledge should be considered when assessingmitigation of loss. However, as the courtreconfirmed that a pecunious claimant is limitedto recovering spot rates only, the issue becameless relevant within the course of the appeal.

The decision is likely to have a major effect on credithire claims. As costs account for around 10% ofinsurance premiums, it will have major ramificationson both the insurance and credit-hire industries. Notonly will the outcome affect litigation by ensuringconsistency and that inflated credit-hire claims arereduced drastically, but it could potentially affect thevolume of claims settling in the ABI GTA. CHOs maysee this as more meritorious than being reduced tospot rates on cases with pecunious claimants. Whatis certain is that this victory will alter the landscapeof future credit hire claims.


Sarah CartlidgeAssociate, BLM Manchester

BLM acted for the defendant

Turning a blind eye?

Insurers are currently facing an increasingnumber of claims from mortgagees and willwelcome the broad test which has beenapplied to the meaning of ‘condone.’However, it is likely that this case will raiseas many questions as it answers.

The case is significant for the market withregard to solicitors’ professional indemnityinsurance. It highlights the circumstances inwhich insurers can decline cover under thepolicy by reason of the dishonestyexclusion. It also serves as a reminder ofthe expense and time involved in bringing aclaim under the Third Parties (Rights AgainstInsurers) Act 1930 (the 1930 Act).

However, one question arises: are the factsclear-cut enough to prevent this kind ofsituation being brought to a trial again?

Background

Joshua and Usman Legal Services Limited(JULS) operated, at the relevant time, withtwo solicitor directors, Mr Atikpakpa andMs Usman. The defendant (Travelers)provided the professional indemnityinsurance for JULS.

Mr Atikpakpa applied to a mortgagee toprocure funds to buy a property. Themortgage provider instructed the claimant(Goldsmith Williams) to act on its behalf.Ms Usman witnessed Mr Atikpakpa’ssignature, and certified a copy of hispassport. The mortgage purchase monieswere subsequently advanced to MrAtikpakpa, but rather than using the moneyto purchase the property, he stole it.

Mr Atikpakpa’s wife (who was also MsUsman’s sister) applied separately to thesame mortgage provider for funds topurchase another property which wasowned by Mr Atikpakpa. JULS wasinstructed to act on Mr Atikpakpa’s behalfand Goldsmith Williams was againretained by the mortgage provider. The

monies again were transferred, but thetransaction was never completed and MrAtikpakpa stole the funds.

JULS was later investigated by the Officefor the Supervision of Solicitors and wasstruck off the companies’ register. Themortgagee brought a claim againstGoldsmith Williams in negligence, andthey subsequently entered into a Deed ofAssignment with the mortgagee to assumeits rights to bring an action against JULSand Travelers.

Goldsmith Williams first had to restore JULSto the companies’ register and then obtainjudgment against JULS. Following this,proceedings were issued against Travelersunder the 1930 Act.

Travelers relied upon a term in the policywhich excluded claims:

Arising from dishonesty or a fraudulentact or omission committed or condonedby [an] insured, except that … no suchdishonesty, act or omission shall beimputed to the body corporate unless itwas committed or condoned by, in thecase of a company, all directors of thatbody corporate …

Travelers argued that this term appliedbecause both Mr Atikpakpa and Ms Usmanhad been dishonest and/or fraudulent; orthat Mr Atikpakpa had been dishonest andfraudulent. Ms Usman had condoned hisbehaviour by turning a blind eye to it. MsUsman did not give evidence at the trial,but Travelers relied upon transcripts ofevidence she had given at a previous trialto prove that (albeit not on the particulartransactions referred to in this case). Shehad herself in the past exaggerated herown income on mortgage applicationforms and had misrepresented the incomeof an employee of JULS (who was also herand Mr Atikpakpa’s nephew) on anothermortgage application form.


It wasinconceivable

that she had noknowledge thatthe transactionwas fraudulent

Professional indemnity insurance and Goldsmith Williams v Travelers InsuranceCompany Limited [2010] EWHC 26 (HC)

The judgment

The judge held that this term appliedand the claim was dismissed. Heapplied the subjective test in Twinsectrav Yardley [2002] 2 AC 164, namelythat the person’s conduct must beunderstood to be dishonest ‘by thestandards of reasonable and honestpeople and that he himself realised bythose standards his conduct wasdishonest’. The judge held that eventhough Ms Usman had not activelyparticipated in the fraud relating tobuying the property, she had witnesseddocuments and therefore it wasinconceivable that she had noknowledge that the transaction wasfraudulent.

In relation to the transaction concerningthe South London property, the judgeapplied the test in Zurich ProfessionalLimited v Karim [2006] EWHC 3355(QB) whereby an insurer was entitled todecline cover if the insured condoned acourse of conduct which was dishonestor fraudulent and that course ofconduct led to or permitted the acts oromissions upon which the claim wasfounded. The judge held that in thecase of the property, Ms Usman musthave known that Mr Atikpakpa wasengaging in fraudulent activities andthat she had the power to prevent himfrom stealing the money. By condoninghis behaviour, she had allowed MrAtipakpa to steal the money fromthe mortgagee.

What is the significance ofthis case?

The facts are such that the judge’sfinding was unsurprising and there was

no need for him to apply the test fordishonesty relating to a breach of trust.This is largely an objective test andarises from the case of Barlow ClowesInternational Limited v EurotrustInternational Inc and others [2005]UKPC 37. With this in mind, there is astrong possibility that in a matter wherethe facts are less obvious, and thesuggestion of complicity by otherpartners or directors less clear-cut, theoutcome could well be different. Thiscase is unlikely to affect that.

Goldsmith is also significant in that itthrows into focus the importance of theThird Parties (Rights against Insurers)Bill which, at the time of writing, hasreceived Royal Assent but the Act is yetto come into force. If it is passed, aclaimant will not have to go throughthe stages of restoring the company tothe register and obtaining judgment.This will reduce the cost and timeexpended with an action under the1930 Act. If passed, the resolve ofclaimants may be strengthened tomake claims in view of the fact thatthey are likely to be cheaper even if thefacts are less straightforward than thisparticular case.

In short, this is an encouraging case forindemnity insurers. While it may notprevent further claims, it may result infewer cases being brought in whichevidence points to one partner turninga blind eye to the dishonesty or fraudof another.


Nathan Penny-LarterSolicitor, BLM London

In short, this isan encouragingcase forindemnityinsurers

The Data Protection Act (DPA) is a widely quoted yetprofoundly misunderstood piece of legislation. Itapplies to private organisations and public sectorbodies alike. The Act has been referred to as ‘acumbersome and inelegant piece of legislation’ by LordPhillips MR, and it is notoriously difficult to navigate. Asa result, many organisations continue to undertaketheir business in a manner that is non-compliant withthe DPA, whilst others are stifled by it and feardisclosing any personal data in case it amounts to abreach of the Act.

Recently, proposals for the introduction of £500,000fines and custodial sentences have highlighted theimportance of compliance with the Act.

The data protection principles

The DPA sets out eight principles which should beabided by. Personal data must be:

1 Processed fairly and lawfully.

2 Processed for specific and legitimate purposes.

3 Adequate, relevant and not excessive.

4 Accurate and up to date.

5 Only kept for as long as is necessary.

6 Processed in accordance with individuals’ rights.

7 Secure.

8 Not transferred to countries outside the EuropeanEconomic Area without adequate safeguards.

Non-compliance

At present, a breach of the DPA can result in theInformation Commissioner serving an enforcementnotice. Failure to take action following the enforcementnotice can lead to a £5,000 fine. This is relativelyinsignificant for a large organisation or a public sectorbody, particularly given the expense of implementinggood data protection policies and the trainingassociated with it. Indeed, one serial offender greetedthe Information Commissioner’s investigators with:

‘What’s the maximum fine for this, £5,000? I will writethe cheque now.’

Breaching the DPA can lead to consequences of asignificant and adverse nature for those whose data ismisused. Inappropriate disclosure of medicalinformation can cause embarrassment and distress. Thedisclosure of personal and/or financial details can assistcriminals in carrying out fraud. Phone hacking byinvestigators and journalists has led to the disclosure ofprivate information.

Due to concerns about the consequences of breachesof the Act the government is now seeking to bring insignificant financial penalties, along with custodialsentences in respect of certain breaches. Thegovernment has recently undertaken consultations inrespect of the introduction of:

1 Fines of up to £500,000 for serious breaches.

2 Custodial sentences for the knowing or recklessmisuse of personal data.

Financial penalties of up to £500,000

The government consultation on introducing financialpenalties of up to £500,000 closed at the end of 2009;there were 52 responses to the consultation paper,including one from BLM.

There are significant concerns about the introduction ofsignificant financial penalties. For example, it is vital forpublic sector organisations to be able to shareinformation in particular circumstances. There havebeen a number of high-profile tragedies that have beencontributed to by public sector organisations notpooling information. Fear of breaching the DPA canresult in organisations refusing to disclose personal dataabout individuals for fear of the consequences of doingso. This can be serious in terms of protecting vulnerableindividuals. This is exacerbated by the complexity of theDPA which creates a lack of confidence amongst thoseseeking to abide by it.

In January 2010 the Ministry of Justice (MoJ) releasedits response to the consultation paper. It stated that 27responses supported the proposal for a penalty of up to£500,000. The MoJ stated that it intended to proceed


Data protection bitesA ‘toolkit’ for survival

with the proposal and as of 6 April 2010, theInformation Commissioner will be able to impose amonetary penalty of up to £500,000 for breaches ofthe DPA. As a result it is imperative for organisationsto ensure that appropriate procedures are in placeto comply with the DPA, as the cost of financialsanctions will far outweigh the cost of implementingthese procedures.

Custodial sentences

The MoJ also recently consulted on the issue ofcustodial sentences for the knowing or recklessmisuse of personal data.

This consultation relates to offences committedunder section 55 of the Data Protection Act (s55prohibits obtaining personal data unlawfully). Thisincludes, for example, taking advantage of access toconfidential information or pretending to besomeone else in order to obtain such information.The introduction of custodial sentences, should itbrought in, is likely to have a profound effect on therole of private investigators. However, all those whohave access to personal data through their job havethe potential to breach s55, for example, byaccessing police intelligence services or medicalrecords for a purpose that does not relate to theirprofessional duties.

The MoJ is yet to publish its response to theconsultation although many expect the proposals tobecome law.

Reducing the risks

Given the substantial penalties that will soon beintroduced for breaches of the DPA (and the adversepublicity that such breaches often attract) it isessential to seek to prevent breaches where possible.

The primary causes of breaches are the loss oflaptop computers and memory sticks, and thecareless disposal of old files/computers. The keysteps that should be taken to manage theserisks are:

1 Ensuring that the organisation has a good data-protection policy which complies with the data-protection principles.

2 Having clear retention and destruction policiesfor equipment and documents.

3 Encrypting laptops and memory sticks.

4 Controlling access to personal data, particularlysensitive personal data.

5 Ensuring that where it is necessary to downloadmaterial onto laptops and memory sticks, onlymaterial that is absolutely necessary to do thework in hand is downloaded.

6 Old computers should not be disposed ofuntil personal information on them has beensecurely removed.

7 All confidential paper waste should be shredded.

Taking steps such as these should help to minimisethe risk of breaches of the Act and avoid these newand potentially substantial penalties.

Ella PirgonSolicitor, BLM London

With contribution from:


Tim SmithPartner, BLM London

Fighting backDefeating dishonest claims in the tort of deceit

Insurance companies are facing increasing pressure todeal with claims expeditiously. It is inevitable, therefore,that some aspect of the claim may be paid before theyare even detected to be fraudulent.

How do insurers ‘turn the table’ and proactivelymanage cases with elements of collateral fraud andrecover monies already paid out.

This is a very important issue in light of the MoJ reformswhich will put increasing pressure on insurers to admitliability within 15 business days. It will also be relevantto insurers who detect or suspect fraud at the end of thestage 1 process after the fixed cost payment of £400has been made as there is no automatic right to recoversuch payments in the terms of the protocol where thereare fraud concerns.

Tort of deceit

This provides a civil remedy for an insurer (for bothpolicyholder and third-party fraud) who has sufferedloss by way of a false or fraudulent representation. Theelements to be proven (set out in Bradford ThirdEquitable Benefit Building Society v Borders [1941] 2 AllER 205) are that:� a party must have made a representation to another

party which is false� the party making the representation must know it to

be false or was reckless as to the truth of thestatement

� there must be an intention to deceive which is actedupon

� loss is suffered as a consequence.

Damages

There are a number of heads of claim that an insurercan seek to recover under the tort of deceit:� Damages representing the time taken by an insurer

to deal with and investigate the claim.� Disbursements incurred by the insurer.� Repair costs to the policyholder’s vehicle.� Payments which have been made to the individual

making the fraudulent claim.� Exemplary damages.

Investigation costsIn R + V Versicherung AG v Risk Insurance &Reinsurance Solutions SA (No3) [2006] EWCA 42(Comm), it was agreed that as part of damages, aninsurer could not only recover the costs of hiringexternal consultants and experts as a result ofconspiracy but also the costs of wasted staff time spenton the investigation and/or mitigation of the tort. Thiswas held to be the case even though there was noactual expenditure or loss of revenue or profit that couldbe shown. It was, held that:

… In order to be able to recover one has to be ableto show some significant disruption to business; inother words that staff have been significantlydiverted from their usual activities.

In practice, what this means is that it is essential forinsurers to keep a full and detailed note of all timespent on their internal investigations. If it can bedemonstrated in real terms how much time an insurerhas spent on the investigation, then there is a goodchance that recovery can be made.

Exemplary damagesThese may be awarded by a court as a punishment andare awarded in addition to compensatory damages.They remain a controversial topic but there is no doubt,from current case law, that they can be recovered.Judges are prepared to make awards of exemplarydamages where the facts merit such an award, althoughthe power is used with restraint.

To recover, an insurer must be able to show that it hasbeen the victim of punishable behaviour which has nototherwise been punished. In AXA Insurance Plc vThwaites (Norwich CC, 8 February 2008), a falseinsurance claim was submitted for damage to a car.Thwaites was prosecuted and given a suspendedsentence by the magistrates. In the civil action the judgerefused to award exemplary damages. By contrast, inAXA Insurance Plc v Jensen (Birmingham CC, 10November 2008) a claim for exemplary damagessucceeded. Jensen pursued a claim for a stolen caravanwhich she had in fact sold. Having only received acaution by the police, the civil judge was happy toaward exemplary damages at 50% of the value of thecompensatory claim.


Caution

Whilst an attractive option for insurers who wish totake greater control in the fight against fraud andwhile serving as a real deterrent (particularly if thereis the appropriate level of media attention), thiscourse of action is not without its pitfalls. Earlydetection may well be assisted by the claimsnotification form brought in by the MoJ reforms asinsurers should have more information at an earlierstage to assist with anti-fraud detection. The burdenof proof on insurers is high and there is a high costassociated with any failed claim.

Improper use of the strategy may additionally lead tothe power of this remedy becoming diluted. Thecourts may also become sceptical of the argumenton a wider front.

Even if successful, the prospect of actuallyrecovering damages needs to be considered toavoid a pyrrhic victory.

Strategy

Whilst generally speaking it may be easier to satisfyif the tort of deceit proceedings follow a finding offraud, there are many strategic advantages ofcounterclaiming during the life of a claim, providedthe high evidential threshold is achieved. The latterapproach can achieve considerable costs savings ifthe tactic is used effectively.

However, careful consideration needs to be given topursuing a tort of deceit action, and insurers mustbe clear as to their strategy and objectives beforesuch action is commenced.


Naomi GrantAssociate, BLM Manchester

Risk v Benefit – an assessmentsee-saw?Is the reality of a ‘Health and Safety at Play Act’ for adults and children approaching?

The last 20 years has seen the Health and Safety atWork Act (HASWA ’74) – the ‘Six Pack’ – and otherhealth and safety at work regulations extend intoplaygrounds. Regulations have demanded the removalor minimisation of all risk in these new ‘workplaces’. Asa result activities have been stifled or stopped. This hasespecially affected school trips and visits.

Section 1 of the Compensation Act 2006 serves as areminder of what is already available under commonlaw. Pleading the Act allows defendants to bring any‘desirable activity’ to the court’s attention.

s1: A court considering a claim … may, indetermining whether the defendant should havetaken particular steps … have regard to whether arequirement to take those steps might

a prevent a desirable activity from beingundertaken … or

b discourage persons from undertaking … adesirable activity.

The HSE favoured children being exposed to a degreeof risk. The Chair, Judith Hackitt, stated:

Children cannot be wrapped in cotton wool – risk ispart of growing up and our children need to learnhow to manage risks in the real world.

Tim Gill is a leading advocate of the proposition thatwhen considering children (and adults) at play, not allrisk is bad risk and that an ‘acceptable risk’ needs tobe kept in the activity whilst removing or minimising‘unacceptable risk’.

The proposition is to assess the risk in these activities bya two-stage process.

1 Consider the benefits that the activity bringsto those involved.

2 Assess the risk, and only remove or reduce it ifit is at an unacceptable level or is inherentlyunacceptable.

Otherwise, reduce it until it is acceptable, setagainst the identified benefits.

Without this approach, play activities would be (somewould argue that they have already become) sosanitised as to lack value.


Visit: www.rethinkingchildhood.com for more detailsof the proposition.

The problem for defending claims has been that thecourts have been unwilling to adopt this approachallowing claimants to argue that the removal of allrisk should have been sought. The fact that playcarries a degree of risk has left defendants as aneasy target for claims. Further, as a directconsequence, defendants would often concedeliability without raising the ‘Benefit v Risk’ defence.

However, in Uren, the Benefit v Risk argument wasbrought to bear successfully.

The case of Uren

Robert Lee Uren v (1) Corporate Leisure (UK) Ltd (2)Ministry of Defence (3) David Lionel Pratt & Ors(Syndicate 2525) [2010] EWHC 46 (QB) QBD(Field J) 22/1/2010

Mr Robert Uren claimed for a personal injurysustained during an It’s a Knock Out-style game at afun day in July 2005 at RAF High Wycombe. MrUren had watched contestants enter the pool bysliding over the side head first. Others vaulted overthe side landing feet first. On his turn, Mr Uren ranup to the side and launched himself into the poolhead first. He hit his head on the bottom of the pool,breaking his neck. Mr Uren is now in a wheelchair.

The judge was critical of the RAF risk assessmentsand the suppliers of the equipment. He observed:

The question for decision is not whetheradequate risk assessments had beenundertaken, but whether the defendants tookreasonable measures to ensure that the gamewas safe.

The expert witness called was Tim Gill’s colleague,Professor David Ball, one of the three foundingadvocates of the Risk v Benefit proposition. In hisreport he contended that actual, rather thanperceived, risk has to be managed. Consider the riskof serious injury alongside the benefits of the activity;a trade-off has to be made.

He concluded that to ban head first entry wouldreduce the game to a boring and pointless activity.In his view, supported by his work on children’s play,activities should not be risk free; risks should bemanaged so that children learn to deal with them.The same should apply here.

The judge considered Professor Ball a veryimpressive witness and stated:

For the reason he gives, I agree with ProfessorBall’s conclusion that the risk of serious injuryposed by the pool game was very small. Thecontestants were told to take care on enteringthe pool.

Enjoyable competitive activities are an importantand beneficial part of the life of the very manypeople who are fit enough to participate in them.This means that a balance has to be struckbetween the level of risk involved and thebenefits the activity confers on the participantsand thereby on society generally. The risk ofserious injury was small. In my judgment, neitherCL nor the MoD was obliged to neuter the gameof much of its enjoyable challenge by prohibitinghead first entry … for the reasons I havegiven, his claim for damages against CL and theMoD fails.

This is an excellent decision for defendants of ‘play’claims. The advice now is to do a ‘Benefit v RiskAssessment’ and ask the courts to follow theprinciples in Uren. This could mean a change in thelaw – or at least a shift in emphasis – in this areafor the benefit of those delivering such activities tocounter any claims made.

In March 2010 Jill Hackett, in a speech to theSchools’ H&S Conference, said:

Sensible risk management applied to experientiallearning mean (sic):� Recognising the balance between benefits

and risk.� Focusing on real risks and not trivia.� Ensuring that people understand that they

have the right to protection but also aresponsibility to behave sensibly.

This supports applying a Benefit v Risk analysis forall play, training and similar events (aka experientiallearning) in the defence of any acceptable riskpresent in the activity.

Whilst health and safety issues have see-sawed inthe courts, Uren now brings the prospect of a‘Health and Safety at Play Act’ ever closer.


Roy WoollardAssociate and formerhead teacher,BLM Leeds

Ten out of ten for common senseA victory for education cases

Education cases are often reported wherethere are breaches of policies or schoolguidelines or failures of risk assessmentsleading, the claimant says, to an accident –a trip or slip – or bullying at the hands of,say, another pupil. It is tempting for a trialjudge in that setting to find that suchfailures amounted not only to a breach ofduty but also led to the injury in question. Itwould be difficult to say that someone hadbeen culpable – sometimes grossly so –but that it did not cause the potentiallyserious injury which followed. Causationneed not always be the battleground itshould be. A High Court case which standsout as a robust assessment of causation isWebster v Ridgeway Foundation School[2010] EWHC 157.

This claim was primarily brought by HenryWebster, a former pupil at RidgewayFoundation School in Swindon. Itconcerned a fight which took place inJanuary 2007 between Webster andanother former pupil (MM) together withhis friends and relatives. The fight tookplace on school premisesshortly after the end of theschool day.

The claimant suffered aserious injury to his headcaused by blows from ahammer wielded by WasifKhan, a non-pupil.

There had been previousincidents which had raisedtensions within the school in May 2006and December 2006. It was suggestedthat there was a racial element tothese tensions.

The claim against the school was framedin negligence albeit with an additionalclaim founded on the Human Rights Act1998. There were three limbs to thenegligence claim:

1 That the school failed to keep the sitesecure (in particular by fencing to keepintruders out and having a staffmember on duty at the end of the dayon or near the tennis courts).

2 That the school failed to establish betterdiscipline and deal with racial tensionsmore effectively.

3 The school should have done more toprotect Henry Webster on the day ofthe attack.

The case was interesting in that it was notsimply a question of the school’s duty toensure the safety of a pupil when subjectedto an assault by another pupil; it wasconcerned with hammer blows inflicted byan outsider, essentially an intruder. Bothcounsel suggested that there had notpreviously been a case where a school hadbeen found liable for injury caused by anattack on a pupil by an outsider. The trialjudge, Nicol J, relying on the Caparo testconsidered that it would be fair, just and

reasonable to conclude that tosome extent the school had aduty to take reasonable care tosafeguard and protect Henryfrom attack by an outsider andin particular the assailant.

In essence the trial judgeaccepted that the school had aduty to take reasonable care tosee that the claimant was safeduring school hours and for a

reasonable period after the end of theschool day on the school’s premises.

Nicol J then turned to the issue of breach.Adopting the three limbs above, he foundas follows:

1 The defendant did not breach his dutyof care by failing to construct aperimeter fence. None of the guidanceon this issue said that the fencing of the


Causationneed not

always be thebattleground it

should be

The Caparo test� Foreseeability.� Proximity within the

relevant relationship.� Where it is fair, just

and reasonable toimpose a legal dutyof a given scope onone part for thebenefit of the other.

school’s perimeter was aninvariable requirement. It was not auniversal practice. The risks anddangers as they were perceived tobe prior to the incident were not sograve that the school was obligedto overcome them by constructing afence. Further the trial judgeaccepted that the school had tomake a judgment as to how toallocate teacher supervision at theconclusion of the day. It was withinthe reasonable range of responsesopen to the school not to allocate ateacher on the tennis courts. Even ifhe was incorrect in that assessment,the claimant failed to show that hisinjuries would have been avoided inany event.

2 Nicol J held that the defendant wasnot in breach of his duty of care tothe claimant by reason of itsdisciplinary approach generally.Even if the defendant was in breachof his duty of care, the trial judgefound that it would not have beencausative; the injuries for which theclaimant was bringing a claim werethe result of blows from a hammerwielded by an outsider. In additionthe claimant argued essentially thatthe school’s race-equality policywas deficient. Nicol J concludedthat more could have been done interms of race relations but that didnot amount to negligence. In anyevent, there was no causative link ifthe judge was wrong on that point.

3 The trial judge assessed whether theschool could have done more to

protect the claimant on the date ofthe incident and again rejectedthese contentions. Again, theinjuries caused were not aforeseeable consequence of someof those alleged omissions.

This case does not bring any ground-breaking developments. This aside, it isworrying that the existence of a duty ofcare owed by schools in relation to anassault caused by an outsider has beenhighlighted. However, that is hardlygoing to be significant news to lawyersand their insurer clients.

Further, whilst a case failing oncausation will hardly cause panic in theclaimant community it is encouragingto see a high court judge taking apractical no-nonsense approach tocausation. The identification by Nicol Jin Webster that even if he was wrong inhis assessment of breach of duty, theclaimant would not have been able toestablish that those breaches wouldhave led to the injuries. This is asensible approach and a usefuldevelopment. It should be applaudedfor its robustness particularly in thecontext of the horrific attack whichformed the basis of the claim.


Jeremy DaviesPartner, BLM Manchester

It isencouragingto see a highcourt judgetaking apracticalno-nonsenseapproach tocausation

Property and policyWhen small print looms large

Disclosure regularly includes property insurance updates which have far-reachingconsequences. These cases demonstrate the need for attention to detail.

When is ‘material’ immaterial?Dhami v Lloyds TSB General Insurance Ltd [2009]EWCA Civ 1326

This decision emphasises the materiality of a criminalrecord held by anyone resident at a property when takingout property insurance. The claimants were a husbandand wife who insured their home and garage with thedefendant insurance company. They then suffered twofires and a burglary over an 11 month period.

In the application and at renewal every year the insurersasked if anybody normally living with the insured hadever been convicted of a criminal offence and theyanswered in the negative. However, it turned out that theDhamis’ son lived there much of the time. He had anumber of criminal convictions in the relatively recentpast for assault (nine months prison sentence); criminaldamage (fine); possession of a bladed article(community service and probation); and threateningbehaviour (community service). He was then convictedagain of threatening behaviour and possession of abladed article (fine) and actual bodily harm andcommon assault (twelve months and three months inprison respectively). He was also convicted of a numberof motor offences.

This case went to the Court of Appeal, and the decisionthere focuses on rules concerning the admission of freshevidence. However, it is made perfectly clear by the factthat the court did not focus on this issue, that thepresence of a person with a criminal record resident atthe policyholder’s property is material and should bedisclosed to underwriters at proposal in answer to arelevant question.

Of course, it may be that in individual cases, a criminalrecord would not be a serious one and would not beregarded as genuinely ‘material’. Nonetheless, it isworth a reminder that criminality, and not just by thepolicyholder, is potentially material, especially in aproperty policy.

How to answer an unknown questionAC Ward & Son Ltd v Catlin (Five) Ltd [2009]EWHC 3122 (Comm)

This is another case concerning material non-disclosurebut in relation to commercial property insurance and apolicyholder. The claimants occupied a warehouse whichwas used to store tobacco. Underwriters had required

risk improvements. Once done, the terms of cover wouldbe changed to the benefit of the insured. The insuredrepresented to underwriters that the key ones had beencomplied with, particularly in relation to the installationof movement detectors and the extension of guard wire.This turned out not to be wholly correct, so underwriterswere avoided. The judge (Mr Justice Flaux) held thatmisrepresenting the position about the risk improvementamounted to a material misrepresentation or non-disclosure of a type that would affect the judgment of areasonably prudent underwriter and that the underwriterwould not have continued to cover the property on thesame terms had the truth been known. Much of theargument around this appears to have been whether thestatement that compliance with risk improvementrequirements had taken place was fair given that therehad been some measure of compliance. The court heldthat there was misrepresentation.

Underwriters therefore succeeded in the case, but there isinterest in relation to use of warranties because the courtwould not allow underwriters to rely on breaches ofwarranty where the requirement was that:

All defects occurring in any protections must bepromptly remedied.

The court accepted that it was implicit in that wordingthat the insured could not be required to remedysomething unless it actually knew that it needed to beremedied, so where an insured was not aware ofdeficiencies, it could not be expected to remedy them.

This is perhaps not surprising considering judicialinsistence on onerous obligations with potentially seriousconsequences for an insured being spelt out clearly. Itshows yet again that the courts are reluctant to construewarranties, or any other potentially harsh provisions in apolicy, literally when they are open to interpretation witha meaning that seems more reasonable from theperspective of a policyholder.


Catherine HawkinsPartner, BLM London

BLM reports

BLM is a patron of The Prince’sTrust Insurance LeadershipGroup, a unique network forleaders of insurance companies,brokers and underwriters in theUK, committed to makinga difference.

As a result of remarkablesupport from clients, barristers,accountants, BLM employees andothers, the firm’s partnership withthe Trust is going from strength tostrength. The success of ourrecent national quiz proved thatthis year is no exception.

BLM Borneo Wildcats!

Team challenges have taken us toNamibia and Costa Rica over thepast two years and in 2010, wewill be sending a team of six toBorneo to compete in thelatest Prince’s Trust InsuranceLeadership Group Challenge.

On 22 May the team will besetting off to take on anextraordinary eight-day challengein aid of The Prince’s Trust. Theintrepid adventurers will climbMount Kinabalu, South-eastAsia’s highest mountain at4,095m; bike and hike overmountain passes, through denserainforest and remote villages;and raft raging rapids on jungle

rivers. The Wildcats’ trainingregime is punishing and requiresreal commitment. The team hasrecently picked up the pace with atough training weekend inCornwall, and they are due to

return to the South-west foranother gruelling weekend at thebeginning of May.

BLM’s national charityquiz night

The Wildcats hosted a verysuccessful quiz on 3 March 2010at six locations across the country,raising more than £25,000 in

support of the team and beatinglast year’s total by £3,500!Many guests also met some ofthe Young Ambassadors fromThe Prince´s Trust who each hada story to tell about how thecharity has helped to turn theirlife around.

Jeyanti Yorke, BLM’s corporatepartnership manager at ThePrince’s Trust, attended theLondon event. She said:

It was great to have our YoungAmbassadors involved asalthough they find it nervewracking they really enjoy theexperience and exposure.Thank you for encouragingthem. I have enjoyed workingwith you on this and BLM hasreally led the way in this typeof national event and we hopethat other partners can followyour example.

Further details about The Prince’s TrustInsurance Leadership Group can befound at: www.princes-trust.org.uk

For more information about BLM’s workwith the Trust and other CSR initiatives(see Community matters newsletter)please visit: www.blm-law.com

Prepared by LLaauurraa PPeeaarrcceeTrainee solicitor, BLM London


Good luck to the BLM Wildcatswho are taking on the 2010challenge: JJooaannnnaa EEvvaannss (BLMCardiff), PPhhiilllliipp GGiibbbboonnss (BLMSouthampton), JJooaannnnee HHoowwaarrdd(BLM London), MMiicchheellllee MMaallllootttt(BLM Leeds), LLaauurraa PPeeaarrccee (BLMLondon) and KKaarrll WWiilllliinnggttoonn (BLMManchester).

BLM’s Borneo Summit to Sea Insurance Challenge

Catherine HawkinsPartner, BLM London

BLM briefing

BLM expands into Bristol

The firm is growing its nationalpresence with the opening of anew office in Bristol, led byCardiff-based senior partnerMatthew Harrington.

Focusing predominantly onpersonal injury, the office willbuild a practice to mirror the solid reputation and focus of the firm’s eight other offices,whilst remaining committed to the insurance and riskmanagement sectors.

BLM recognised as mostfemale friendly firm

BLM has been recognised by TheLawyer magazine for having thehighest proportion of femalepartners among the top 50 UKfirms by turnover.

Commenting on the ranking, BLM London partner CharlotteCapstick, who is featured withinthe article, said:

Whilst we are pleased to berecognised in this way, wehave long taken it very muchfor granted that we shouldpromote talented female staffand adopt sensible flexibleworking policies where wecan. We are only surprised tohear of other firms nowannouncing the introductionof such arrangements yearsafter we did!

BLM expands partnership

Welcome to new partnersChristopher Fitton (professionalindemnity, Birmingham), AidanCarr (healthcare, Manchester)and Christopher Fletcher(personal injury, Manchester).

CSR and charity events

More than 30 BLM volunteerstook part in the 2010 CityGateway Insight Tour in theLondon office in January.

Feedback from the 20 traineeswas positive with 92% saying theyare now more confident aboutapplying for jobs. The traineestook part in CV and interviewworkshops and were entertainedwith a ‘unique’ role play, actedout by BLM staff, whichdemonstrated how not to conductyourself during an interview!

Charity support is alive and wellin all BLM offices. Nationally, staffhave donated time and money forgood causes including SportRelief, Haiti, Children in Need,Paraguay and other international,national and local causes. Onceagain, in 2009 BLM donated tocharities local to each office inlieu of sending Christmas cards.

BLM briefing is prepared by NNaattaalliiee KKiinnggBusiness communications executive,

BLM London


Main events

BLM is hosting, or will be featured at,the following:PPuubblliicc sseeccttoorr sseemmiinnaarrss22 April – Cardiff28 April – Manchester5 May – Newcastle5 Oct – London7 Oct – Birmingham13 Oct – Leeds21 Oct – Southampton8 Dec – Llandudno

OOccccuuppaattiioonnaall ddiisseeaassee ccoonnffeerreenncceess2299 AApprriill One Great George Street, London2299 SSeepptteemmbbeerrThe Lowry Hotel, Manchester

OOtthheerr eevveennttss1188 MMaayy Air travel and tourism law seminarSalisbury House, London (BLM)2266 MMaayy Construction ‘Getting paid’ seminarSalisbury House, London (BLM)1155--1166 JJuunnee AIRMIC conferenceManchester Central 2288--2299 JJuunnee ALARM conference Southport Convention Centre66 JJuullyy Fraud seminarSalisbury House, London (BLM)88 JJuullyy Bus and coach seminarSalisbury House, London (BLM)1166 SSeepptteemmbbeerr Air travel and tourism law seminarKing’s House, Manchester (BLM)99 NNoovv Construction ‘Getting paid’ seminarSalisbury House, London (BLM)

CCllaaiimmss RReevviieeww ccoonnffeerreennccee1111 NNoovvOne Great George Street, London 1177 NNoovvThe Lowry Hotel, Manchester

To book your place, for further informationor news of additional events please visit ourweb page at:www.blm-law.com/1881/pages/events.html

BBrriissttooll ppaarrttnneerrss

Left to right:Andrew Lawson,

MatthewHarrington,

Rebecca Shafto

April 2010_759

BBiirrmmiinngghhaamm63 Temple RowBirminghamB2 5LSTT 0121 643 8777FF 0121 643 4909

LLeeeeddssPark Row House19–20 Park RowLeeds LS1 5JFTT 0113 236 2002FF 0113 244 2002

MMaanncchheesstteerrKing’s House42 King Street WestManchester M32NUTT 0161 236 2002 FF 0161 832 7956

BBrriissttoollBroad Quay HousePrince StreetBristol BS1 4DJTT 0117 975 8649FF 0117 905 8810

LLiivveerrppoooollCastle Chambers43 Castle StreetLiverpool L2 9SUTT 0151 236 2002FF 0151 236 2585

SSoouutthhaammppttoonn2 Charlotte PlaceSouthampton SO14 0TBTT 023 8023 6464FF 023 8023 6117

CCaarrddiiffff23 Neptune CourtVanguard WayCardiff CF24 5PJTT 02920 447 667FF 02920 489 041

LLoonnddoonnSalisbury HouseLondon WallLondon EC2M 5QNTT 020 7638 2811FF 020 7920 0361

SSttoocckkttoonn--oonn--TTeeeessInnovation House, Yarm RoadStockton-on-Tees TS18 3TNTT 01642 661 630FF 01642 661 631

disclosure 15 - apr 10 · liverpool l2 9su) on behalf of berrymans lace mawer llp and printed by...

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