Kerry Underwood

Archive for August 2018

COURT OF APPEAL STRIKES DOWN PART OF CICA SCHEME RE SEXUAL ABUSE

leave a comment »


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

In JT v First-Tier Tribunal & CICA & Equality and Human Rights Commission [2018] EWCA Civ 1735

the Court of Appeal held that the “same-roof” rule in the Criminal Injuries Compensation Authority Scheme, which provides that an award will not be made in respect of a criminal injury sustained before 1 October 1979 “if at the time of the incident giving rise to that injury, the appellant and the assailant were living together as members of the same family” was manifestly without reasonable foundation and thus struck it down.

This is an important and significant decision which may open up the heavily curtailed CICA Scheme to other challenges.

Here, the applicant’s stepfather was convicted of repeatedly raping and sexually assaulting her while they were living together as members of the same family, but the same-roof rule meant that no compensation was payable.

By contrast, a relative of the applicant, not living under the same roof, did receive compensation in relation to two incidents of indecent assault by the stepfather.

The rule was modified in 1979, but only in relation to post-1979 incidents, not claims, and thus a pre-1979 incident always remained outside the scheme.

On appeal the applicant argued that the same-roof rule was incompatible with article 14 of the European Convention on Human Rights which provides:

 

“Prohibition of discrimination

 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

 

The Court of Appeal then set out its task in determining this issue:

 

“40. To determine whether applying para 19 of the 2012 scheme is incompatible with article 14, three questions need to be answered. The first is whether the difference in treatment of which JT complains concerns the enjoyment of a right set forth in the Convention – the test for this purpose being whether the facts of the case fall “within the ambit” of a Convention right. The second question is whether the difference in treatment is on the ground of a “status” which falls within article 14. The third question is whether the difference in treatment amounts to “discrimination” prohibited by article 14. Where the claimant has been treated differently from a class of persons whose situation is relevantly similar, this depends on whether there is an objective and reasonable justification for the difference in treatment.”

 

The judgment contains detailed examination of the principles, issues in case law in relation to all matters, and its first task was to decide whether the facts of this case fell “within the ambit “of  article 14 and concluded that they did.

The applicant here relied upon article 1 of Protocol 1 (1P1) which provides:

 

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law…”

 

It concluded:

 

“69. The necessary conclusion, in my view, is that the current criminal injuries compensation legislation in the UK is to be regarded as establishing a proprietary interest falling within the ambit of article 1P1 for persons satisfying its requirements. It follows that article 14 applies to JT’s claim that she would be eligible for an award under the 2012 scheme but for discrimination on a ground prohibited by article 14.

  1. In reaching this conclusion, I am fortified by the fact that it accords with the recent decision of the Court of Session (Inner House) in MA vCriminal Injuries Compensation Board[2017] CSIH 462017 SLT 984, which has been followed by the High Court of Northern Ireland in In re F [2018] NIQB 7.”

 

The Court of Appeal then considered whether the difference in treatment was on the ground of “a status” which falls within article 14:

 

“71. Article 14 contains a list of grounds on which discrimination is prohibited. But the wording of article 14 also makes it plain that the list is illustrative and not exhaustive. Thus, the list is preceded by the words “on any ground such as” and ends with the words “or other status”. It is not suggested that JT has been discriminated against on the ground of a status which is specifically mentioned in article 14. What is said is that the case falls within the words “or other status”. The approach of the European Court of Human Rights has been to interpret that phrase (“toute autre situation” in the French text) broadly. As interpreted, article 14 is not restricted to grounds such as sex or race which are particularly suspect because they are commonly or historically associated with prejudice and discriminatory treatment. (Such an interpretation would in any event be inconsistent with the inclusion of “property” in the list of grounds.) In addition, while the court has repeatedly referred to the need for a distinction based on a “personal” characteristic in order to engage article 14, this has not been taken to limit the scope of “other status” to characteristics which are innate or inherent: see Clift v United Kingdom (Application No 7205/07) 13 July 2010, paras 58-59.”

 

Again, the Court of Appeal reviewed the relevant case law and principles and concluded that once the relevant comparator group is correctly identified, it is clear that the difference in treatment complained of is based on a ground which constitutes a status for the purposes of article 14:

 

“77. The main and much more focused way in which the case has been advanced in this court identifies the relevant status by reference to the terms of para 19 of the 2012 scheme as that of someone who, when a victim of a violent crime, was living together as a member of the same family as her assailant. That, in my view, is undoubtedly a personal status of a kind which falls within article 14. Although not a core feature of a person’s identity such as gender or sexual orientation, living with another person as a member of the same family seems to me to come within the middle of Lord Walker’s concentric circles, being a status that – certainly in the case of a parental or quasi-parental relationship – is central to the development of an individual’s personality and is not a matter which he or she can be expected to change. This is reflected in the fact that respect for a person’s family life and home is protected in the Convention by article 8 because of its “central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community”: see Connors v United Kingdom(2005) 40 EHRR 9, para 82.”

 

The Court of Appeal then considered the issue of discrimination and said that the settled case law showed that this depended upon whether the state can show an “objective and reasonable” justification for the difference in treatment, judged by whether it has a legitimate aim and there is a “reasonable relationship of proportionality” between the aim and the means employed to realise it.

The Court of Appeal saw this as equivalent to the irrationality test and said that “it is also firmly established and is common ground in the present case that the test for justification remains one of proportionality.” It then added:

 

“83. … The canonical formulation of that test is now that of Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39[2014] AC 700, para 74, where he identified the assessment of proportionality as involving four questions:

“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

Put more shortly, the question at step four is whether the impact of the rights’ infringement is disproportionate to the likely benefit of the impugned measure: ibid. Another way of framing the same question is to ask whether a fair balance has been struck between the rights of the individual and the interests of the community: see Bank Mellat v HM Treasury (No 2) [2013] UKSC 39[2014] AC 700, para 20 (Lord Sumption).

  1. In In re Medical Costs for Asbestos Diseases (Wales) Bill[2015] UKSC 3[2015] AC 1016, paras 46-52, Lord Mance (giving the lead judgment in the Supreme Court) discussed at some length the question of how the “manifestly without reasonable foundation” test relates to this four-stage assessment of proportionality. Lord Mance concluded that the test is applicable at the first stage, when asking whether the measure has a legitimate aim, and possibly at the second and third stages. However, at the fourth stage where the court is required to weigh the benefits of the measure against its impact on individual rights, it may be appropriate to give significant weight to the choice made by the legislature but “the hurdle to intervention will not be expressed at the high level of ‘manifest unreasonableness'” (paras 46 and 52). Lord Thomas, who gave the other judgment, agreed with Lord Mance on this point (para 114). This view has since been endorsed by Lord Wilson in giving the majority judgment in R (A) v Secretary of State for Health (Alliance for Choice and others intervening) [2017] UKSC 41[2017] 1 WLR 2492, para 33.
  2. On this authority counsel for JTand for the Equality and Human Rights Commission submitted that the criterion of whether the policy choice made is “manifestly without reasonable foundation” is not relevant at the final stage of assessing proportionality in asking whether a fair balance has been struck between the rights of the individual and the interests of the community. Counsel for CICA disputed this, relying on other decisions of the Supreme Court in which no distinction has been drawn between different stages of the proportionality assessment in applying the “manifestly without reasonable foundation” test. They relied above all on R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58[2016] 1 WLR 4550, where a Supreme Court of seven justices unanimously rejected an argument that the courts below had been wrong to apply the “manifestly without reasonable foundation” test and the Supreme Court itself applied the test without referring to proportionality. Counsel for CICA also emphasised that the Medical Costs case and the Alliance for Choice case were not concerned with the provision of state benefits: the former involved the retrospective deprivation of property and the latter was concerned with the provision of abortion services, a quite different field.
  3. I do not accept that the Medical Costsand Alliance for Choice cases can be distinguished on the ground that they did not involve the provision of state benefits. Both involved matters of economic or social policy which fell squarely within the area where the court will be very slow to substitute its view for that of the executive or legislature. Moreover, there is nothing in the Stec case (or other jurisprudence of the European Court of Human Rights) from which the “manifestly without reasonable foundation” test derives, and no reason in principle or logic, to adopt a different and special rule in benefit cases. However, the approach endorsed in the Medical Costs and Alliance for Choice cases has not been explicitly discussed or applied in other decisions. It may be that at some point the Supreme Court will re-visit and clarify the correct analysis. That said, whether, at the stage of assessing whether a policy choice strikes a fair balance, the “hurdle for intervention” is pitched at the level of “manifest unreasonableness” or something slightly less is a point of some nicety which seems unlikely to make a practical difference in many cases. Certainly it would make no difference to my conclusions in the present case. In these circumstances I propose to apply both versions of the test.”

  

Thus the Court of Appeal has asked the Supreme Court to consider ditching the “manifestly without reasonable foundation” test.

The Court of Appeal considered in detail the history of the CICA Scheme and the amendments to it and its key findings are at paragraphs 113 to 115:

 

“113. Put in terms of proportionality, saving a potentially significant and uncertain cost is undoubtedly a legitimate aim and the ‘same roof’ rule is at least causally connected to that aim. However, there are plainly other ways of saving money which do not involve excluding a group of applicants from the scheme on an arbitrary and irrational basis. Such an approach in any event manifestly fails to strike a fair balance between the objective of saving cost and the rights of individuals in the position of JT.

  1. The arbitrary and unfair nature of the rule which prevents JTfrom receiving an award of compensation is starkly illustrated by the award which has actually been made to her relative (see para 3 of this judgment). I do not belittle the injuries which that person suffered as a result of two incidents of sexual assault which occurred before 1 October 1979. But it is clear that in terms of severity those incidents cannot stand comparison with the repeated sexual abuse and rape to which JT was subjected during most of her childhood, as established at a criminal trial. A scheme under which compensation is awarded to the relative but denied to JT is obviously unfair. It is all the more unfair when the reason for the difference in treatment – that JT was living as a member of the same family as her abuser, whereas her relative was not – is something over which JT had no control and is a feature of her situation which most people would surely regard as making her predicament and suffering even worse.
  2. In these circumstances I have no hesitation in concluding that the difference in treatment of which JTcomplains is manifestly without reasonable foundation and violates article 14 of the Convention.”

 

The Court of Appeal, article 14, concluded:

 

118. I would therefore hold that treating JT as ineligible for an award of compensation on the ground that she was living as a member of the same family as her assailant at the time when he assaulted her is incompatible with article 14 of the Convention.

  1. Under section 6 of the Human Rights Act 1998, it is unlawful for a “public authority” – which includes a court or tribunal – to act in a way which is incompatible with a Convention right unless (broadly speaking) it is required to do so by primary legislation. The precise test is set out in section 6(2) but it is unnecessary to consider the test in detail as it has not been suggested that section 6(2) is applicable in this case. The 2012 scheme is contained in subordinate legislation and there is nothing in any primary legislation which requires the 2012 scheme to contain the ‘same roof’ rule or which prevents its removal. In particular, there is nothing in the 1995 Act under which the scheme was made which has that effect. Accordingly, section 6(1) of the Human Rights Act makes it unlawful for CICA (or any other public authority including the First-tier Tribunal) to apply para 19 of the 2012 scheme in JT’s”

 

 

Advertisements

Written by kerryunderwood

August 17, 2018 at 8:10 am

Posted in Uncategorized

FIXED COSTS, TRIBUNALS AND APPEALS: A PROBLEM

leave a comment »


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

In Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842 (01 August 2018)

the Court of Appeal considered the question of costs when an appeal from a non-costs jurisdiction – the Employment Appeal Tribunal here – reaches the Court of Appeal, which is costs bearing.

This problem has been partly dealt with by the relatively new provision in CPR 52.19 which provides:

 

“(1) Subject to rule 52.19A [Aarhus Convention claims], in any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to—

(a) the means of both parties;

(b) all the circumstances of the case; and

(c) the need to facilitate access to justice.

(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).

(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.”

 

The problem with this rule is that it gives the Court of Appeal a discretion to limit costs, rather than the starting point being that there are no costs in an appeal to the Court of Appeal from a non-costs jurisdiction.

The facts of this case demonstrate the absurdity and gross unfairness of the current rule, which clearly defeats the will of Parliament.

Here the applicant won an Employment Tribunal claim on liability when the respondent failed to file a response within time and was debarred from taking part in any hearing without the permission of the Employment Judge hearing the case.

An Employment Tribunal has this power under rule 21 of the Employment Tribunals Rules of Procedure 2013.

The issue here which went to the Court of Appeal was whether the respondent should be allowed to take part in the quantum trial, known as a remedies hearing in Employment Tribunals.

Both the Employment Tribunal and the Employment Appeal Tribunal decided that the respondent could not take part.

Both of these jurisdictions are costs free.

The respondent succeeded in the appeal to the Court of Appeal and the applicant was ordered to pay costs to the respondent totalling £14,227.

Thus an entirely innocent applicant – indeed an applicant who was the victim of sex discrimination, unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay- has been ordered to pay the guilty party £14,227.

True it is that the applicant failed to comply with CPR 52.19(4) which requires an application for a limited or non-costs order to “be made as soon as practicable” and here the Court of Appeal said that had such an application been made in time it was “highly probable that an order under CPR 52.19 would have been made which might have limited the recoverable costs to the court fees, or even directed that no costs were to be recoverable at all.”

However, as the word “might” shows, there is no certainty in such cases and the victim here may still have faced a bill of costs, and the court fee alone was £1,727.

Given that there is no right to appeal to the Court of Appeal unless and until permission is given, a no costs rule would not lead to  unmeritorious cases reaching that court.

 

In UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51

the Supreme Court outlawed the Employment Tribunal fee system as preventing access to the courts, and so we have returned to a no tribunal fee system in the Employment Tribunal and Employment Appeal Tribunal, which also remain costs free, that is, unless exceptional circumstances apply, a winning party does not recover costs from the losing party.

To impose costs in the Court of Appeal, and to charge a court fee to proceed to the Court of Appeal, in cases where Parliament and the Supreme Court have said that there should be no costs, and no court fees, is defying the will of Parliament and the Supreme Court.

 

The rule should read:

 

“Unless there is unreasonable conduct, there shall be no order for costs in any court dealing with any appeal in relation to proceedings where costs recovery is excluded at first instance.”

 

 

 

Fixed Costs Cases

There is a similar problem in relation to fixed costs cases, that is that first instance costs are fixed, but appeal costs are not.

 

I propose the following wording:

 

“Unless there is unreasonable conduct, any costs order in any court dealing with any appeal in relation to proceedings where recoverable costs are fixed in the first instance, shall not exceed 20% of those fixed costs.”

 

You can argue about the figure of 20%, but it is the principle that I am driving at.

This will become of far greater significance once fixed costs are extended to all claims of all kinds worth £100,000 or less.

Indeed, now that the Civil Justice System is seen as a profit silo, rather than one of the corner stones of a democratic society, like defence and the police, it should be the Ministry of Justice which pays all of the costs of all appeals caused by an error by a judge.

Why should private citizens and companies pay for that judge’s error twice over, once through taxation and again in the actual proceedings?

 

Presidential Guidance Note No. 2 of 2018

The President of Tribunals has issued  Guidance Note No.2 of 2018, providing further guidance on wasted costs and unreasonable costs, and on the correct approach to applications for costs made in proceedings before the First-tier Tribunal.

The detailed guidance is for the judiciary, but is obviously very useful for lawyers operating in the tribunal system, and the guidance is here.

 

 

Written by kerryunderwood

August 16, 2018 at 8:10 am

Posted in Uncategorized

COSTS BUDGETING AND DISPROPORTIONALITY: A TRESPASS CLAIM

leave a comment »


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

In Red and White Services Ltd v Phil Anslow Limited and another [2018] EWHC 1699 (Ch) (23 May 2018)

a High Court Judge held some of the budgets to be disproportionate and emphasised that parties should approach budgeting realistically.

High budgets may not be approved and setting low budgets as a tactic may backfire.

The claimant and defendant are bus companies in dispute about access to slots in a bus station and the claimant sued the defendant for trespass.

The defendant counterclaimed with a competition law claim against the claimant and against a third party.

The defendant’s budget to trial was £288,000, reduced from £400,000, originally.

The other two parties’ budgets were each £1.5 million to trial.

The defendant submitted that the other parties’ budgets were seriously disproportionate, given that damages were likely to be £80,000 to £120,000.

The claimant and the third party submitted that their budgets were realistic estimates and that the defendant’s budget was unrealistically low.

This was not simply a modest claim for damages but had serious implications for the claimant and the third party.

Taking into account the financial value of the claim and its overall significance, the judge decided that a costs budget of £1.5 million was disproportionate.

It should be possible for a competition law claim about a bus station to be tried at a more modest costs level.

The seriousness of competition law infringements, could not be used “as a form of trump card justification for a very high budget”.

The significance of an approved budget was that costs were more likely to be recoverable from the losing party.

Accordingly, a very significant aspect of budgeting was concerned with the other party’s cost risk.

That was obviously of concern to the defendant in this case as the defendant was the claimant in the competition claim.

As to the options available after declaring the budgets disproportionate, the judge:

  • was not attracted by the defendant’s Precedent R, which sought to set the other parties’ budgets by reference to the same level as the defendant’s budget.

He considered that D’s budget was too low and not a good guide.

 

  • thought that simply to send the case away helped nobody.

Simply to decline to make a costs management order also was unhelpful and prolonged uncertainty.

 

  • concluded that the court should come up with an overall appropriate figure for the claimant and the third party’s budgets of £800,000.

 

They should file revised budgets in line with that.

 

 

Written by kerryunderwood

August 15, 2018 at 8:10 am

Posted in Uncategorized

INTEREST ON COSTS PRE-JUDGMENT. INCREASED HOURLY RATE AND SUCCESS FEE WHERE SOLICITORS FUNDING DISBURSEMENTS.

leave a comment »


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

In Jones and Ors v Secretary Of State for Energy and Climate Change (2013) EWHC 1023 (QB)

the Queen’s Bench Division of the High Court allowed pre-judgment interest on disbursements where the disbursements had been paid by the claimants’ solicitors as the matter progressed, and where there was a credit agreement between the solicitors and the client.

The interest rate was 4% above base, payable only in the event of success, with the After-the-Event insurer paying the credit charge if unsuccessful.

The paying party conceded that in principle the claimants were entitled to pre-judgment interest on disbursements and here it was the rate of interest that was in dispute.

CPR 44.3(6)(g) allows a court to award interest on costs from or until a certain date, including a date before judgment, and the rate is in the discretion of the court.

This power was introduced by the Civil Procedure Rules and first exercised in

Bim Kemi AB v Blackburn Chemicals Limited [2003] EWCA Civ 889,

where the Court of Appeal said:

“…in principle there seems no reason why the court should not [award interest on costs] where a party has to put up money paying its solicitors and has been out of the use of that money in the meanwhile.”

The judgment here then considers various cases where the rate of interest had been considered, including

Jaura v Ahmed [2002] EWCA Civ 210

which deals with the issue in detail.

In Tate and Lyle Food and Distribution Limited v Greater London Council [1982] 1 WLR 149

the High Court said that it would always be right to look at the rate “at which plaintiffs [claimants] with the general attributes of the actual plaintiff in the case… could borrow money as a guide to the appropriate interest rate.”

Examples of rates allowed include:

Jaura v Ahmed:                                                         3% above base rate

Bim Kemi:                                                                    1% above base rate

Brown v KMR Services:                                           2% above base rate

Denney v Gooda Walker:                                      2% above base rate

Here, given that the claimants were individuals of modest means, the Court of Appeal found that in the open market the interest rate on an unsecured loan “would have been significantly in excess of the 4% above base rate” agreed with the solicitors, and thus allowed that sum.

The case is also of interest in that it takes as a given that the solicitors could have charged a higher hourly rate, and/or a higher success fee to reflect the fact that they were funding disbursements:

In some cases, the claimant’s solicitors might fund the disbursements, either by absorbing the cost as part of their overheads or by providing the funding in return for the payment on increased hourly rates of remuneration or an additional uplift in the success fee under a CFA.” (Paragraph 5)

The Court of Appeal regarded this as a separate and additional risk, beyond that of postponement of receipt of costs, warranting a higher hourly rate and/or success fee.

Given the fact that it is much harder for a client to challenge the hourly rate as compared with the success fee, claimants’ solicitors are advised to reflect funding in the hourly rate.

Also, a success fee is now never recoverable from a losing party, whereas the solicitor and client full rate potentially is, where an indemnity cost order is made, for example because a claimant has matched or beaten its own Part 36 offer at trial, or on judgment being entered.

RECOVERING INTEREST ON THIRD PARTY FUNDER LOANS

In Angela Jade Powell v Shrewsbury and Telford Hospital NHS Trust, 1 April 2016, Case Number O5Y02236

the claimant, a person of limited means, used disbursement funding and sought to recover the interest payments from the losing party.

Here, the paying party conceded that in principle the claimant could recover interest, but disputed the right to claim pre-judgment interest on three grounds:

 

  • the credit agreement was unenforceable as the claimant had not been properly advised;

 

  • the court did not have jurisdiction to re-open the Consent Order and thus changed what had been agreed;

 

  • 3% was an excessive rate of interest.

 

In the end, the defendant conceded on all points and paid £1,600 in interest.

The case that established this principle is

Jones and Ors v The Secretary of State for Energy and Climate Change and Anor [2013] EWHC 1023 (QB).

Written by kerryunderwood

August 14, 2018 at 8:10 am

Posted in Uncategorized

MIXED DATA CASES AND DISCLOSURE

with one comment


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

Mixed data is data which relates to someone else, as well as the person making the request for data.

In the case dealt with below it was an independent expert’s report obtained by the General Medical Council, which dealt not only with the medical treatment of the person making the request, but with the conduct of the GP who had treated him.

The principles relating to this case were contained in section 7(4) of the Data Protection Act 1988, which has now been repealed, but similar provisions are now contained in section 94(6) to (10) of the Data Protection Act 2018:

 

“(6) Where a controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, the controller is not obliged to comply with the request unless—

(a) the other individual has consented to the disclosure of the information to the individual making the request, or

(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(7)  In subsection (6), the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request.

(8)  Subsection (6) is not to be construed as excusing a controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(9) In determining for the purposes of subsection (6)(b) whether it is reasonable in all the    circumstances to comply with the request without the consent of the other individual concerned, regard must be had, in particular, to—

(a)  any duty of confidentiality owed to the other individual,

(b) any steps taken by the controller with a view to seeking the consent of the other     individual,

(c)  whether the other individual is capable of giving consent, and

(d)  any express refusal of consent by the other individual.

(10) Subject to subsection (6), a controller must comply with a request under subsection (1)—

(a) promptly, and

(b) in any event before the end of the applicable time period.

Section 7(4) of the Data Protection Act 1988 read:

“(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless—

 

(a)  the other individual has consented to the disclosure of the information to the person making the request, or

(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.”

 

 

In B v General Medical Council [2018] EWCA Civ 1497, 28 June 2018

the Court of Appeal allowed an appeal by the General Medical Council against a High Court decision preventing the disclosure of an independent expert’s report concerning a GP’s fitness to practice.

The patient who was the subject of the report had sought disclosure of the full expert report following his complaint that his doctor had examined him and failed to make a bladder cancer diagnosis resulting in a delay in treatment.

 

The Court of Appeal held that:

 

  • the High Court had wrongly relied on

Durant v Financial Services Authority (Disclosure) [2003] EWCA Civ 1746,

which identified a basic presumption or starting point in favour of the objector and therefore against disclosure in a “mixed data” case, but here the Court of Appeal, which is not bound by its own previous decisions, held that that case was wrong on this point, and in any event was obiter, that is it did not form part of the basis of its finding.

 

“70. Contrary to the view of Auld LJ and the judge below, I do not think that the balancing regime in section 7(4)-(6) of the DPA includes any presumptive starting point or hurdle which either the requestor or the objector has to overcome. The circumstances in which the balancing exercise has to be carried out from case to case will be many and varied, and where no consent has been given for disclosure (or where objection has been raised, as in this case) the outcome of the exercise will inevitably depend on the particular facts and context. The question is simply whether “it is reasonable in all the circumstances to comply with the [SAR] without the consent of the other individual” (section 7(4)(b)). Although section 7(6) specifies that regard should be had to certain listed matters “in particular”, it does not limit the other matters which may be relevant circumstances; nor does it specify the weight to be given to the listed matters either as between the items in the list or as against other, non-listed relevant circumstances. There is no sound basis for saying that one should load the exercise at the outset in favour of either the objector or the requester. The rights and interests engaged on each side are both rooted in Article 8 of the ECHR and in specific protective provisions in the Directive. Both sets of rights and interests are important and there is no simple or obvious priority as between them which emerges from consideration of their nature or their place in the legislative regime. In that regard I note that the Information Commissioner, in her guidance, does not recognise or endorse any presumption of the kind referred to by the judge: see her Subject Access Code of Practice (version 1.1, February 2014, at pp. 30-34; version 1.2, June 2017, at pp. 36-40).

  1. It is conceivable, but in practice I think unlikely, that a data controller who carries out the balancing exercise in section 7(4)-(6) in a mixed data case might be left with factors for and against disclosure which are found to be in perfect equilibrium with nothing to choose between them. In that situation there would be a need to apply a presumption at the end of the exercise, in order to arrive at a decision one way or the other. In my view, the presumption to be applied at this stage would be in favour of withholding disclosure. I emphasise that this would be a presumption of the weak, tie-breaker type referred to above. It is not a significant or substantive presumption to be applied at the outset.
  2. My reason for saying that the tie-breaker assumption operates in favour of the third party data subject, rather than the requestor in this situation is that, although section 7(1) of the DPA creates a right for the data subject as against the data controller to have his personal data disclosed to him upon making a SAR, by virtue of section 7(4) the data controller is relieved of that obligation where information comprising those personal data cannot be disclosed “without disclosing information relating to another individual who can be identified from that information”, unless either of sub-paragraphs (a) or (b) is satisfied. As regards sub-paragraph (b), it must appear that it is “reasonable in all the circumstances to comply with the request without the consent of the other individual”; that is to say, having regard to the strength of the interest of the requester (as reflected in the legislative regime set out in the Directive and the DPA) in obtaining disclosure, to the strength of the interest of the objector in maintaining his privacy in relation to the information in question and to any further public interest factors which may be relevant. If the considerations for and against disclosure really are precisely balanced, the data controller (or anyone else applying the test in section 7(4)) cannot positively say that it is reasonable to comply without the consent of the other individual. This indicates that the tie-break presumption should operate in this residual sense against disclosure.

 

  • There was no general principle that the patient’s interests, when balanced against the doctor’s, should be devalued because he was seeking information which might assist him in litigation.

Even if the patient intended to obtain material which might help him in litigation, that in no way diminished the legitimacy or force of his interest to have communicated to him, under section 7 of the Data Protection Act 1998 (DPA 1998), information about his personal data as processed by the GMC and the independent expert.

  • The High Court had erred in its criticisms of the General Medical Council’s consideration of the doctor’s privacy rights, his express refusal of consent and in its assessment of the incremental impact of disclosure on the doctor.

It had also substituted its own views regarding relevant factors and the weight that should be accorded to them for those of General Medical Council as controller.

 

The Court of Appeal also said that it would be reasonable in appropriate cases for a data controller to make disclosure conditional upon there being no wider dissemination of the information.

 

“83.Thirdly, in view of the wide-ranging submissions we heard on this appeal, I should mention a possible half-way house which may be open to data controllers which conduct a balancing exercise under section 7(4). In some cases, the balance between the legitimate protected interests of a requester and those of an objector may be more finely balanced than in this. For example, it might appear that the requester has good reasons for wishing to check on the accuracy of his personal data used in processing by the data controller whilst at the same time there are objective grounds to think that he wishes to use the information obtained for an illegitimate purpose, e,g, to post the information on the internet to try to traduce the objector. In such a case it might be reasonable (within the meaning of section 7(4)(b)) to make disclosure of the information to the requester if there can be appropriate assurance that no wider inappropriate dissemination of the information will occur, whilst it might not be reasonable to make disclosure in the absence of such assurance. In my view, it would be open to the data controller in such a case to invite the requester to consider giving a binding contractual undertaking to the data controller or the objector or both, to restrict the use to which the information might be put. In conducting the balancing exercise under section 7(4), the data controller would then be entitled to take into account whether such an undertaking had been proffered, or not, when deciding whether it was reasonable to make disclosure. To be clear, I do not think that this would usually be an appropriate course to try to restrict a requester from using information sought by means of a SAR in litigation thereafter. Later use in litigation is not something which is illegitimate in itself, so far as the subject access regime is concerned.

Underwoods Solicitors are the solicitors for the Joint Administrators in Cambridge Analytica case.

 

 

 

 

Written by kerryunderwood

August 13, 2018 at 1:40 pm

Posted in Uncategorized

INDEMNITY PRINCIPLE

leave a comment »


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

In Commissioners for HM Revenue and Customs v Gardiner & Others [2018] EWHC 1716 (QB)

the Queen’s Bench Division of the High Court was considering the indemnity principle in relation to a non-conditional fee case.

Although the judgment contains no new legal principles, it does contain a thorough analysis of the relevant case law and sets out the principles relevant to the making of a costs order in favour of a successful party in circumstances in which another body or individual has undertaken to meet those costs.

Here the High Court said that the indemnity principle will not be infringed if:

  1. the putative receiving party establishes a contract with solicitors or representatives to act on their behalf;

 

  1. the contract derives from a retainer or agreement, which may be express or implied;

 

  1. the receiving party may have sole liability for costs or dual liability with a solicitor or other representative acting as their agent;

 

  1. absent an express term to that effect it is likely to be an implied term of such a contract that the client will be liable for costs incurred on his behalf;

 

  1. if the receiving party establishes a contractual liability to pay the costs, it does not matter that it is “highly or vanishingly unlikely” that the receiving party will in fact be called upon to pay those costs. It is the liability to pay, rather than who makes the payment, which is material;

 

  1. the presumption that a client instructing a solicitor or representative to represent them will be liable for costs incurred for such representation may be rebutted by the paying party proving that there was a bargain between the client and the representative that under no circumstances was the client to be liable for costs.

 

 

The High Court added:

 

Frequently, as in this case, litigation is funded by the third party to further their own interests as well as those of the funded party. However that does not negate the liability of the funded successful claimant to pay for legal fees incurred albeit met by a third party acting as his agent in giving instructions.” (Paragraph 39)

 

Written by kerryunderwood

August 13, 2018 at 8:10 am

Posted in Uncategorized

PAYMENT BY CARD

leave a comment »


Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here

AMEX

AMEX automatically deducts the commission from the supplier once payment is made by the client.

Thus if money is paid on account of costs, rather than to discharge an invoice, then the automatic deduction of commission creates a client account shortfall.

Thus £2,000 on account of costs is taken. The money goes into client account. Let us assume 2% commission is taken. That means £40 is removed by AMEX.

If the solicitor tops up that sum from office account, then the client is not losing out, as there is still £2,000 on account being held.

Indeed the client is benefitting in that the solicitor is taking payment by credit card with no charge to the client for that facility, whereas many suppliers make a charge to the customer.

The Solicitors Regulation Authority has been very helpful and its view is that this is not a problem, but that the clients should be told that the commission will be taken straight away, but that it will involve no extra cost to them.

There is a problem if the client does not proceed, as the solicitor would then need to refund the whole sum, which would result in a net loss of £40 to the solicitor.

That could be dealt with in the retainer, that is that there is no credit card charge to the client if the matter proceeds, but they will have to pay it if they do not proceed.

My view, from a marketing and not a regulatory position, is that that may put clients off and also causes unnecessary work in each case, given that it rarely happens.

A firm with a work profile where it does happen frequently could take a different view.

There is a problem in delivering an invoice and then taking payment for it by AMEX, as the money then goes into client account, which is a breach of the Solicitors Accounts Rules, as once a bill has been delivered, payment should go into office account.

I know that solicitors often take the view that putting money into client account is the safe option, but it is in fact a breach in these circumstances.

If a solicitor is dealing with a matter, or a stage, on a fixed fee, or is delivering an interim bill, then there is a practical way around it.

That is to telephone or email the client and explain that the bill is about to be delivered, take payment into client account, immediately deliver a bill and then transfer the money from client account to office account.

At the beginning of a case, this presents few problems as the solicitor can explain the situation to the client and send an email in advance of the bill, guaranteeing that that is the price for the work to be done and there will be no further charges.

This can be set out at the end of the Client Care Letter under a “Next Steps” section, together with costs information.

 

This could read:

Next Steps

To attend you and take a detailed statement from you and advise you at that meeting and in writing concerning your employment matter.

The fee for this work is £300 plus VAT giving a total of £360.”

 

The potential problem arises when a solicitor sends out a bill as the matter goes along and the client then wishes to pay by credit card.

If it is a trusted client, then the solicitor could issue an immediate credit note, take the payment and then deliver a fresh bill and transfer the money.

Where a solicitor has less confidence in the client, it would be possible to raise a credit note for internal purposes and if the client pays, then a fresh invoice can be delivered.

If for any reason the client does not pay, then the credit note need never be sent out.

 

Other Credit Cards

Generally other credit card companies do not deduct commission at source, but send the supplier a monthly invoice, and so that point does not arise, but all of the other points dealt with above in relation to AMEX do apply.

 

Debit Cards

Generally these are not a problem as money can be paid into client account or office account, depending on whether the payment is to discharge a bill, or is a payment on account of costs.

 

Written by kerryunderwood

August 10, 2018 at 8:10 am

Posted in Uncategorized

%d bloggers like this: