February 2, 2012

A step in the right direction for privacy?

With the varying methods for distributing data it is increasingly difficult to protect your privacy and prevent others distributing your personal details online. 
In a move to protect an individual’s privacy the high court awarded an interim injunction in favour of a claimant who had been threatened with the prospect of having personal photographs distributed widely across the internet.  Having weighed up the balance between the right for privacy and the right of freedom of information the court decided that the balance fell heavily in favour of privacy. 
The order was also made against “persons unknown” so as to prevent anybody in possession of the photographs in the present or future from distributing them.

Precautions should still be taken to protect personal data as enforcing injunctions may be difficult, particularly if dealing with foreign jurisdictions.

An offer to settle before proceeding is a Part 36

It is usual for a party to make an offer to settle matters before issuing proceedings in the court. Once a party commences action in court any offers to settle the case are usually done by way of a Part 36 offer. If a claimant makes a Part 36 offer, and the defendant rejects this, then it can result in a cost award to the claimant where the court considers the refusal to be unreasonable.

There has been some uncertainty about whether a claimant is entitled to its costs if a pre-action Part 36 offer is accepted before the claim is issued, given that there are no "proceedings" in that event. The Court of Appeal has now clarified that steps taken in contemplation of proceedings, including offers to settle matters, should be considered when dealing with a cost order.  

Parties contemplating issuing proceedings should consider making an offer to settle matters. This could avoid legal expenses from the outset. Furthermore, in the event the offer to settle is refused, it could mean that you are able to recover your legal costs.

Free choice of legal representation.

With regard to insurance taken out to cover costs of legal proceedings it was accepted practice that insurers could refuse its insured's choice of solicitor on the basis that the solicitor's proposed hourly rates exceeded those prescribed by the insurer.

However, this practice has now been challenged in the High Court, where it was found that the insured has an unfettered right to choose legal representation. The proposed hourly rates did not constitute "exceptional circumstances" under the insurance policy, which would entitle the insurer to decline the appointment. The insurer had unreasonably refused to allow the insured, who had chosen their first solicitor, to appoint a new solicitor.

Policy holders should not automatically accept the insurer’s choice of solicitor.

Insurers should review their policies and ensure that the right to refuse an insured’s choice of solicitor on the basis that the hourly rate is too high does not restrict the insured’s right to choose legal representation.

September 30, 2011

Untruthful witness statements: Not reading carefully is no excuse

If you provide evidence for court that requires you to sign a statement of truth and it is later found by the court that the evidence is untruthful you could be found to be in contempt of court and receive a prison sentence.

The case of Nield v Loveday [2011] resulted in Mr Loveday receiving a nine month prison sentence for exaggerating his injuries suffered, in a road traffic accident, in both the particulars of claim and his witness statement submitted to court. Mr Loveday claimed he had not read the documents sufficiently before signing them. The court decided that Mr Loveday had been given sufficient warning by his solicitor, before signing the documents, of the consequences of making a false statement and had requested several amendments to the document. As such he was deemed to be fully aware of what he was signing and that it was in fact false.

Make sure that you read your witness statement prepared for you before signing to declare it to be true. Ignorance is not a defence!

August 15, 2011

Recovering payments to third parties- not too remote

Conarken Group Ltd and another v Network Rail Infrastructure Ltd has seen the Court of Appeal considered whether a loss in the form of a liability to make contractual payments to third parties was recoverable from the negligent party. Conarken Group had caused damage to the walls of a railway bridge that caused the line to be closed for five days; they agreed that this was due to their negligence and that they were liable for the cost of repairs.  However, Network Rail was contractually obliged to compensate train operating companies for the loss they suffered as a result of the disruptions and they wished to recover these costs.

It was decided that these costs were recoverable as it was reasonably foreseeable that the if the rail infrastructure was damaged that the train companies that used them would suffer diminished value, and even if Conarken had not known of the specific contractual agreement it was foreseeable that there would be provision in place for Network Rail to compensate the train companies for disruption caused. 

Before admitting liability for negligence you should consider if there could be any loss attributed to a third party that you could also become liable for.  If you have any doubts then it is best to seek expert advice.

“All reasonable endeavours” mean all reasonable endeavours!

In the case of Jet2.com Ltd v Blackpool Airport Ltd, Blackpool Airport changed its policy to refuse Jet2.com to accept arrivals and departures outside of its opening hours as this was resulting in the airport running at a loss.  As a result Jet2 sued for breach of contract on the basis the policy contravened the requirement for Blackpool Airport to “use all reasonable endeavours to provide a low cost base to facilitate Jet2’s low cost pricing.”

The High court rejected the Airport’s argument that all reasonable endeavours does not include acting against its own commercial interest as this would result in companies being able to pick and choose the level of their performance to suit their financial situation.

It is important to understand your obligations under commercial contracts and the level of performance. Attempting to limit the standard of performance will not bode well in court.