Monday, 27 January 2014

After Mitchell

If there was any suspicion that Mitchell-v-News Corporation was merely an exercise in sabre rattling and not the beginning of a real war on delay by litigants, that suspicion can now be laid to rest. I predicted that Mitchell would be the most quoted case of 2014 and am on course to be proved right. Two very recent cases caught my eye. In the first, I am not sure that a different decision would have been reached before Mitchell or the new 3.9. In the second, the extent of the new judicial intolerance of delay is made painfully clear.

A view from Liverpool County Court.
 Are the Judiciary going too far in trying to get their message across?

Don't Rely on Indulgence from the Trial Judge

First, in Thavatheva Thevarajah-v-Riordan and others the respondents had failed to comply with an unless order to provide information by a certain date. A High Court Judge had refused them relief from sanctions but they renewed that application at trial before a deputy high Court Judge and relief was granted. To the Court of Appeal's understandable dismay, "the deputy judge before whom the matters were listed allowed more than four of the five days allotted to the trial to be spent on the relief application, and on the grant of relief by him the existing trial window was vacated and a direction was given for the trial to take place in a new trial window commencing on 27 January 2014, with a revised time estimate of eight days." 

The decision had been made before the Court of Appeal's decision in Mitchell, but Mitchell was still quoted at length by the Court when allowing the appeal.

The Court May not Sanction and Agreed Extension of Time

Second, there is the judgment of Mr Justice Turner in  MA Lloyd-v-PPC, which begins, inauspiciously for the defaulting party:

"This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence."

The unhappy history of the case need not trouble us, save to note that the claimant's attempt to "comply" with the court's order was unimpressive. In short the claimant was in default of an order to file and serve witness statements. The defendant sought only a new timetable, an approach regarded by the court as too timid. At paragraph 27 the Judge held:

"CPR 32.10 specifies the consequences of failure to serve a witness statement. It follows that even if the parties had purported to reach a concluded agreement on an extension of time this would not have been effective unless the court were to be persuaded formally to endorse it. This court is under a duty under CPR 1.4 not simply to adjudicate passively upon the applications of the parties or to rubber stamp their reciprocal procedural indulgences but actively to manage cases. To this end, the court has power under CPR 3.3 to make orders of its own initiative." 

Take a moment to let this sink in. The courts might well accept late service of statements if the parties have agreed it and there are no adverse consequences for the conduct of the litigation, but no-one can safely assume that the court will "indulge" and agreed extension of time. Thus, the only safe course is to apply in advance to the court. Applications take time and money and use up the court's resources.

As an astute source pointed out to me, CPR 32.10 refers to a "witness statement or a witness summary for use at trial..." whereas in MA Lloyd the witness statements were ordered for an interlocutory hearing. Nevertheless it appears that the interlocutory hearing was in relation to important issues which were to be tried. Hence, I presume, the witness statements were intended for use at trial as well as at the interlocutory hearing.

Anecdotal evidence is flying around of cases being struck out for short delay in lodging trial bundles and other such calamities.

Keep calm and don't carry on as before.

PS. After publishing the post above, I saw a neat suggestion on twitter: at first directions seek an order permitting the parties to agree extensions of time for compliance with any of the court's orders for up to 14 days without requiring further permission of the court. I suppose some courts would not agree to that solution (why not simply extend the timetable by 14 days!) but others will see the sense in allowing a degree of flexibility where the parties can be trusted not to treat compliance as an "optional indulgence".

Sunday, 19 January 2014

Open Justice

Judges and juries have a solemn and difficult task. Their decisions can change lives. Over days, sometimes weeks, they carefully listen to, scrutinise and weigh evidence to determine whether allegations are proved and to give judgments and verdicts accordingly. No sooner have they done so than thousands of people who have not heard any of the evidence, take to their computers to condemn them for the decisions they have reached.

Court cases make great news stories. Trials, inquests and inquiries are packed with human interest and produce high drama, particularly suited to sating the appetite of our 24 hours rolling news and commentary.

A trial is opened or a verdict returned and the world is ready to voice its view. The legal process is adversarial so we can all take sides. Serious legal proceedings become a stage for heroes and villains to be cheered or jeered by a mocking audience. Strident opinions are given by those who have not seen the reactions of witnesses tested in cross-examination, who have not read court documents or heard submissions.

And that is a problem. For many, including many politicians, the legal system is worthy of vilification when it produces results they do not like. This jury's verdict is an injustice, that judge's sentence is unreasonable. The swell of instant opinion gives rise to a clamour for an instant fix. Just add another statute to the pile.

The fight for justice is a fight for a just process not for the particular outcome you happen to favour. Even the finest justice system will disappoint those who expect it to produce only the outcomes which they think are just. The purpose of the legal system is not to achieve this or that result but to deal with cases fairly, with "due process".

I too love the theatre of the court room. I too enjoy sharing opinions about court cases. This is not a plea for everyone who is not a lawyer to shut up and leave it to the professionals. Indeed many of those offering instant opinions on twitter are lawyers. Rather than closing down opinion, my plea is to promote more informed opinion by opening up justice to an even greater degree. The more knowledge and understanding, the less there will be fanaticism and foolishness. One of the great advantages of the jury system is the insight it affords all citizens into the court process. There are other measures which could also advance understanding, including the following.

Firstly, more court proceedings should be televised. This will help convey the reality of the court room, the nuances of a case, the difficulties in assessing evidence. And let's find a way properly and safely to photograph court proceedings so that the media can dispense with the need for those crayon drawings!

Secondly, sentencing comments as well as judgments in all cases including family and court of protection cases should be readily available (anonymised as necessary). At least there will then be no excuse for offering comment without knowledge of the relevant facts. Sir James Mumby has called for greater transparency and surely he is right.

Thirdly, we should build on the citizenship education of school students. This should include compulsory viewing of Twelve Angry Men!

For two years now I have been involved in running the Manchester heats of the Citizenship Foundation's Bar Mock Trial Competition. School students act as counsel, witnesses, ushers clerks and jury members in mock criminal trials before real judges in real court rooms. It gives them some idea of how the court system works. The difficulty of deciding who is lying and who is telling the truth is brought home. The importance of the burden and standard of proof is vividly demonstrated.

Fourthly, lawyers could listen more to others including those who become caught up in the legal system: victims of crime, witnesses, reporters, experts. It is not that lawyers are conservative, but we can be quite defensive. I am sure we could learn a great deal from other others about how to improve the justice system without letting go the fundamental values of the system which have developed over centuries. Perhaps if we listened to others then they would be more willing to listen to us.

A sound system of justice should not only be open it should thrive on openness.

Wednesday, 8 January 2014

Negligently Causing Death

Sometimes a judicial decision will challenge all sorts of assumptions you have made when dealing with many similar cases over the years.

In Brown-v-Hamid [2013] EWHC 4067 (QB) the claimant was the widow and administratrix of Ronald Brown, deceased. He had died of pulmonary hypertension in 2012, after having commenced a clinical negligence claim which was continued after his death by his widow. Mr Justice Jeremy Baker found that the defendant's clinical negligence in failing to give Warfarin at a particular time in 2007 had accelerated the onset of more severe symptoms associated with Mr Brown's pre-existing pulmonary hypertension by about 12 months. However "although the non provision of Warfarin may have allowed the development of some further symptomatic emboli, the size of these was such that given the history of pulmonary hypertension in this case, they would have only made a relatively modest contribution to the inevitable progression of Mr Brown's condition." [36].

A bereavement award was made under the Fatal Accidents Act 1976 and awards under that Act are only made where "death is caused by any wrongful act, neglect or default...." So, the Court must have found that Mr Brown's death in 2012 was caused or materially contributed to by the defendant's negligence.

The Court made awards for loss of earnings the deceased would have enjoyed and services to replace those he would have given "but for the onset of more debilitating symptoms" [41-42]. Logically these must have been claims by the estate under the Law Reform (Miscellaneous Provisions) Act 1934, being claims which the deceased would have brought in a personal injury claim prior to his death, and which survived for the benefit of the estate.

Funeral Costs

It is of some interest, however, that the Court refused to make awards in relation to funeral expenses since "they would have had to be shortly incurred in any event and there is no evidence that they have been increased as a result of the defendant's negligence." [43]. No dependency awards were made because the awards made for loss of earnings and services (to the estate) fully compensated for the period of loss caused by the defendant's negligence [45].

We will all die. Most of us will have a funeral. Most often our loved ones will pay for the funeral. In nearly all FAA or LRA claims the costs of a funeral would have been incurred at some point in any event. Should the short period of acceleration of death justify the refusal to make an award for funeral expenses?

The FAA provides for damages where "death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action ...” 
(s.1(1) FAA). Provided this test is met, I am not clear as to the logical basis for depriving a claimant of an award she would otherwise have been entitled to, on the basis that the death has been accelerated by a short period (if indeed 12 months is a short period). All FAA claims arise because negligence has accelerated death, because death is always inevitable. The Courts do not look at whether, but for the negligence, the claimant would have lived long enough to have incurred funeral costs or to be bereaved.

On the other hand should awards be made for bereavement or funeral costs if negligence can be proved to have caused injury and shortened life by one week, one day or one hour? Is there a line to be drawn? If so where, and why should the line be different for a claim for funeral costs than for a claim for the bereavement award?

I am not at all convinced that the decision on funeral costs in this case was correct, but it may be seized upon in other cases, in particular clinical negligence claims where negligence has hastened death.

Loss of a Spouse's Unquantifiable Support

The Court also refused to make an award for general damages for the "loss of special consortium" - also known as a Regan-v-Williamson award - because there was "a distinct overlap with the award for damages for bereavement" and "damages are also to be awarded for the loss of DIY services." [46].

Whatever view is taken of such awards, they have long existed alongside the statutory bereavement award and they are, by definition, for intangible or unquantifiable losses. So, to deprive a claimant of the award on the basis that there was also a bereavement award and that there are quantifiable losses (for DIY!) seems surprising. I myself am hopeless at DIY, so presumably my loved ones can look forward to a Regan-v-Williamson award.

Happy New Year.