Archive for the ‘Litigation’ Category
Wednesday, June 1st, 2011
The fight against insurance fraud received a shot in the arm when the Court of Appeal allowed Zurich Insurance to pursue a claim for fraudulent representation.
Colin Hayward claimed around £420,000 for an accident at work. His employer’s insurers were suspicious and they alleged that he was exaggerating his injuries. In October 2003 the claim was settled for around £135,000 but two years later evidence emerged which suggested Mr Hayward had made a complete recovery from his injuries over a year before settlement.
Zurich sought damages. The claim was struck out by the Judge who held that there was no material difference between Zurich’s allegations of fraud in both cases. The Court of Appeal disagreed and have allowed Zurich’s claim for damages to proceed.
This is a welcome decision for defendants and their insurers who are safe in the knowledge that if fresh evidence later comes to light they will not be prevented by the courts from pursuing claimants for damages.
It also serves as a reminder to those claimants who make miraculous post-settlement recoveries that they can still be pursued if they have induced settlement through deceit.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (9 votes cast)
Tags: Court of Appeal, employers liability, fraud, insurance, steven conway, zurich
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Tuesday, May 31st, 2011
The uncertainty over the validity of Part 36 offers expressed to be “open for 21 days” ended with Friday’s Court of Appeal judgment in C v D [2011] EWCA Civ 646 which confirmed that Part 36 offers cannot be time-limited.
The Part 36 offer in that case was however saved from failing by the court construing “open for 21 days” as meaning it would not be withdrawn within 21 days, without the permission of the court.
In the light of this decision, Part 36 offers which are presented as a Part 36 offer and which otherwise comply with its form will not readily be interpreted by the courts in a way which will prevent them from being valid Part 36 offers.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.2/10 (11 votes cast)
Tags: C v D, CPR, insurance, Part 36, steven conway
Posted in Insurance, Litigation | No Comments »
Thursday, March 17th, 2011
Property tycoons Vincent and Robert Tchenguiz hit the headlines earlier this month when they were briefly arrested and questioned by British police about their role in the failure of Icelandic bank, Kaupthing.
The Tchenguiz brothers were yesterday granted permission by the High Court to sue Kaupthing Bank for one billion damages following the banks failure to block the claim on the grounds that the English court did not have jurisdiction to hear it.
The brothers had also brought claims in the Icelandic courts which had been thrown out.
The result may be a victory at great cost for the brothers, as the Icelandic bankruptcy courts may refuse to recognise an English judgment on the validity of the brother’s claims.
Posted by Dominic Offord , who specialises in business recovery and insolvency matters for creditors and practitioners including transaction avoidance claims; commercial dispute resolution; experienced litigator on high value and warranty claims.
Dominic Offord
0115 976 6149
dofford@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: business recovery, Icelandic bank, Icelandic bankruptcy, insolvency, Kaupthing Bank, Vincent and Robert Tchenguiz
Posted in Business recovery, Litigation | No Comments »
Tuesday, February 15th, 2011
A recent article in the Derby Telegraph highlighted the nature of frivolous or spurious claims local authorities routinely face. While some may see this as possibly a ‘slow news’ day in Derby, the article does raise some interesting issues for local authorities and litigators alike.
One would like to think that cases involving ‘kamikaze conkers’, are never allowed anywhere near doors of the Court, however, other cases, where perhaps decisions are more finely balanced in all types of litigation, would it be unreasonable to think that Courts will allow local authorities more discretion and perhaps leniency – especially in these days of austerity? Time will tell.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: kamikaze conkers, local authorities, local authority claims
Posted in Litigation, Local Authorities | No Comments »
Friday, January 14th, 2011
In Ashford –v- Somerset County Council a 9 year old student was being led in a line of pupils exiting a classroom. The teacher was at the front of the line and opened the door and led the children into the corridor. The Claimant was at the back of the line and when he turned around to talk to some friends, the door closed on his fingers.
The Claimant argued that the Council should have fitted door closures and other protection to the door; that Risk Assessments had been completed and sufficient supervision was not in place.
The Court found that just because door closures were available it did not necessarily mean that there was a breach if they were not utilised. A door is safe without such protection and a child of the Claimant’s age should be familiar with doors and their dangers.
While the Council had not risk assessed for the type of accident that occurred for that specific door, the Court found it was not necessary to do so as there had been no other accident prior to this one.
The claim was dismissed – the School’s duty was to take such care as would be exercised by a reasonably careful parent and not to take steps to ensure the complete safety of its pupils. Commonsense prevailed.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
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Rating: 7.0/10 (2 votes cast)
Tags: Claims, elpl, insurance claims, local authority claims
Posted in Employers & Public Liability, Insurance, Litigation, Local Authorities | No Comments »
Friday, January 7th, 2011
Nick Clegg today announced ‘ambitious’ plans to reform Britain’s ‘laughing stock’ libel laws, and a draft libel bill is due this spring. Reform is certainly needed, but it should not be easier for journalists to be sloppy or for bloggers to lie.
Some of the suggested reforms seem to echo recent developments in the common law. It is already established that trivial comments cannot be defamatory . Similarly, it has always been a defence that a statement is true, and honest comments are also not defamatory. A defendant may also claim qualified privilege if he acted in good faith and without malice. So what would the proposed new defence of speaking out in the public interest add?
The key issue which needs reform is the huge legal costs involved which means that defendants settle unmeritorious cases. Reform has been attempted previously. The government should concentrate on this; there have been enough reports and if effective reform is enacted, libel bullying and libel tourism will wane.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Britain's libel laws, legal costs, Nick Clegg
Posted in Litigation | No Comments »
Thursday, December 2nd, 2010
In a significant development to defamation law, the Supreme Court in Spiller v Joseph has clarified the defence of fair comment (also renaming it “honest comment”).
It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.
This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 8.5/10 (2 votes cast)
Tags: advertising, Brands, defamation, defamation law, fair comment, honest comment, litigation, media, Supreme Court
Posted in Advertising & Marketing, Brands, Commercial Litigation, Intellectual Property, Litigation | 2 Comments »
Monday, November 22nd, 2010
Take That star Howard Donald was named as a party to proceedings with Adakini Ntuli with whom he had previously had a relationship.
The High Court granted an injunction against the publication of her story and also granted an anonymity order and an order restraining the reporting of the fact of the proceedings. On appeal, the Court of Appeal continued the substantive injunction but overturned the anonymity and restraining reporting restrictions on the grounds that they were unjustified.
This decision weighs public interest against the right to privacy. But, unlike other competing human rights, the scales are not set fair. “Necessity” was the hurdle to be overcome by Mr Donald. He failed to establish that the mere reporting of the proceedings would be significantly invasive to his private life.
How would we all feel about a newspaper naming us as a party to privacy proceedings which, if unsuccessful, would result in the publication of sexually explicit details of our relationships? I, for one, would feel aggrieved.
Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.
Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Adakini Ntuli, Howard Donald, super injuction, Take That
Posted in Litigation | No Comments »
Tuesday, November 16th, 2010
The Government published its consultation in relation to the cost of civil claims on 15 November, coinciding with a linked paper regarding Legal Aid.
Its key recommendations include abolishing the recovery of success fees or ATE premiums from the losing party, the use of qualified one way costs shifting and damages based agreements and enhanced penalties under Part 36 offers.
The consultation focuses primarily on issues of funding. Recommendations such as fixed fees, new processes and limitations on referral fees will be looked at separately. There is also a strong focus within the document on personal injury litigation, though a number of the proposed reforms would have wider ranging effects.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
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Rating: 9.3/10 (3 votes cast)
Tags: Claims, insurance, Jackson reforms, personal injury litigation
Posted in Insurance, Insurance - Advisory, Litigation | No Comments »
Friday, August 27th, 2010
The debate about the future of litigation costs rages on. The Adam Smith Institute is the latest body to publish a report proposing reform to the CFA regime, and the abolition of legal aid for most claims.
The report’s author, Anthony Barton, proposes a cap on recoverable success fees and ATE premiums accompanied by a modest uplift in general damages to address the concern that claimants will be left less well off. The great strength of his report is in placing legal costs issues in the context of the current economic situation.
Barton is critical of Lord Justice Jackson’s proposals in relation to one way costs shifting and expresses concern in relation to the potential for unintended consequences, including spurious claims and fraud.
Jacksons’ recommendations should not be dismissed lightly and are likely to be at the heart of the Government’s proposed consultation in Autumn. Whether or not his conclusions prove correct, Barton’s report is also deserving of further consideration in the months ahead.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
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Rating: 9.0/10 (3 votes cast)
Tags: ate insurance, costs, insurance, jackson report, legal costs, litigation
Posted in Litigation | No Comments »
Comment must be “honest” – it doesn’t have to be “fair”
Thursday, December 2nd, 2010In a significant development to defamation law, the Supreme Court in Spiller v Joseph has clarified the defence of fair comment (also renaming it “honest comment”).
It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.
This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
Tags: advertising, Brands, defamation, defamation law, fair comment, honest comment, litigation, media, Supreme Court
Posted in Advertising & Marketing, Brands, Commercial Litigation, Intellectual Property, Litigation | 2 Comments »