The impact of LASPO: Bar Council reveals preliminary findings

 

LASPO

The Bar Council has revealed some preliminary findings from research commissioned on the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’).

 

The results of an online survey, undertaken by the Bar Council, with Professor Graham Cookson from the University of Surrey, have not been released in full, and the final report is expected to be published in September 2014.

 

One focus of the survey is the impact on practitioners undertaking family work, civil legal aid work and civil litigation. Some points announced in the Bar Council’s press release include:

 

  • 64% of respondents who worked in civil courts reported an increase in court delays since the implementation of LASPO
  • 70% of respondents from civil courts reporting an increase in self-representation
  • 61% of all respondents noted an increase in the number of lay clients saying they had difficulty accessing legal advice and representation
  • 60% of respondents reported an increase in the number of lay clients requesting free advice and representation.
  • 79% of respondents who undertook civil litigation work reported that LASPO had partially or significantly affected the Bar in their practice area
  • 45% of respondents involved in civil litigation work who also reported a decline in case work
  • 53% of respondents who worked as civil litigation practitioners reported a decline in fee income
  • 27% of barrister respondents reporting a general increase in interest in non-traditional funding arrangements, including fixed fees, deferred payment, pro bono assessment of risk, litigation funding, and Damages-Based Agreements (DBAs)
  • 42% of respondents undertaking civil litigation work reported experiencing issues with the transition from old-style conditional fee agreements (CFAs) to post-Jackson CFAs.

 

The Bar Council’s press release is found here: Bar Council reveals preliminary findings of its impact of LASPO survey.

Expansion of wasted costs orders?

The Government’s assault on the judicial review process continues.  The Ministry of Justice has now launched another consultation, Judicial Review: Proposals for Further Reform. In Section 7 of the consultation, titled ‘Rebalancing Financial Incentives’ there are some proposals to widen the scope of the courts’ powers to make wasted costs orders, which potentially stretch beyond judicial review processes to other types of civil litigation.

 Proposals

The Government seeks views on whether the current approach to wasted costs orders should be modified to enable the making of such an order to be considered in respect of a wider range of conduct, and on what a modified test would be – for example, whether and if so how it might differ from the test in CPR 44.11 for costs sanctions in relation to misconduct.

The Government also seeks views on whether the consideration of an application for a wasted costs order could be streamlined so it is not more time consuming or expensive than the wasted costs which are in issue. One possibility might be greater use of consideration on the papers with written representations, while preserving the court’s ability to require an oral hearing if that is in the interests of justice.

The Government also invites views on whether legal representatives who contest a wasted costs order and request an oral hearing should be required to pay a fee for the cost of that oral hearing, to properly cover the costs involved in hearing the case, and whether that fee should be contingent on the case being successful.

Consultation Questions

There are 4 specific questions on this aspect of the reforms:

Question 22: How could the approach to wasted costs orders be modified so that such orders are considered in relation to a wider range of behaviour? What do you think would be an appropriate test for making a wasted costs order against a legal representative?

Question 23: How might it be possible for the wasted costs order process to be streamlined?

Question 24: Should a fee be charged to cover the costs of any oral hearing of a wasted costs order, and should that fee be contingent on the case being successful?

Question 25: What scope is there to apply any changes in relation to wasted costs orders to types of cases other than judicial reviews? Please give details of any practical issues you think may arise.

The Consultation  runs for 8 weeks, and the deadline for responses is midnight on the 1 November 2013. 

Is ‘the game worth the candle’?

Candles

Candles (Photo credit: magnuscanis)

In Carr v Penman [2013] EWHC 2679 QB, Dingemans J. has helpfully summarised the principles to be applied when considering whether or not to set aside an order for service outside the jurisdiction and to strike out a defamation claim as a ‘Jameel’ abuse of process. He said:

The legal principles to be applied on this application

29. In the course of submissions it became clear that there was not much by way of material dispute between the parties about the legal principles to be applied by me in determining this application.

30. First when the Court is considering whether service out of the jurisdiction either should be permitted or should have been permitted, the focus of the inquiry is whether the Court should assume jurisdiction over the dispute. The Court needs to be satisfied that there is a serious issue to be tried, see Seaconsor Far East v Bank of Markazi[1994] 1 AC 438 at 457B-C; that there is a good arguable case that the Court has jurisdiction to hear it; and that England is clearly the appropriate forum, see Spiliada Maritime Corporation v Cansulex Ltd[1987] AC 460 at 481E and MRG (Japan) Limited v Engelhard Metals Japan Limited [2003] EWHC 3418 (Comm) at paragraph 26.

31. In determining whether there has been a real and substantial tort committed in the jurisdiction, the test is set out in Jameel v Dow Jones[2005] EWCA Civ 75; [2005] QB 946 and then applied in subsequent cases relating to abuse of process. It is established that in order to deal with cases justly, proportionately and to maintain a proper balance between the Convention right to freedom of expression and the protection of other rights, the Court is required to stop as an abuse of process defamation proceedings which serve no legitimate purpose, see Jameelat paragraphs 50 and 55. The test has been expressed in a number of different ways, namely whether “the game is worth the candle”, see paragraph 69 of Jameel, or whether there is any prospect of a trial yielding “any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources”, see Schellenberg v BBC[2000] EMLR 296.

32. The Jameel test has been applied in a number of cases. It might be noted that in some of those cases the determinations that the action had become an abuse of process was against a background where rulings on meaning and comment had been given. In such cases it is sometimes easier to show that the proceedings would not achieve anything of practical utility for the Claimant, see Cammish v Hughes [2012] EWCA Civ 1655; [2013] EMLR 13 at paragraph 60 and Euromoney Institutional Investor Plc v Aviation News Limited and another [2013] EWHC 15050 (QB) at paragraphs 142-144. To dismiss an action in such circumstances, or to refuse to permit proceedings to be served out of the jurisdiction in such circumstances, is a draconian power vested in the Court, compare Haji-Ioannou v Dixon and others [2013] EWHC 1505 (QB) at paragraph 30. However this must not prevent the Court from exercising the power in appropriate cases where there is no legitimate purpose in the proceedings given the importance of free speech.

33. Secondly it is accepted that, in making his without notice application for permission to serve out of the jurisdiction Mr Carr owed a duty to make full and frank disclosure of matters which might reasonably be taken into account by the Judge in deciding whether to grant the application, see MRG (Japan) Limited v Engelhard Metals Japan Limited [2003] EWHC 3418 (Comm) at paragraphs 23 to 30. Material points should be drawn to the Court’s attention, it is not sufficient that somewhere in the exhibits a point can be discerned.

34. Thirdly if there has been a failure to make material disclosure the Court may still decline to set aside the order, if setting aside the order would be disproportionate and contrary to the overriding objective to deal with cases justly, see MRG at paragraph 43.

What intent is required for false imprisonment?

Cell Door

Cell Door (Photo credit: cbmd)

In Iqbal v Prison Officers’ Association [2009] EWCA Civ 1312 Smith LJ considered the issue of what intent was necessary in the tort of false imprisonment.  Her Ladyship noted:

72.     … In battery, the tort is complete without any harm being caused; the mere deliberate touching is enough.  So it would be immaterial whether the harm were intentional or not.  However, with false imprisonment, the loss of liberty is the essence of the tort and, in my view, the claimant must show not merely an intentional act or omission (to the extent that an omission will suffice – see above) but also an intention to deprive the claimant of his liberty.  I can illustrate the point as follows. If a security guard in an office block locks the door to the claimant’s room believing that the claimant has gone home for the night and not realising that he is in fact still inside the room, he has committed a deliberate act.  However, he did not intend to confine the claimant.  He may well be guilty of negligence because he did not check whether the room was empty but he would not be guilty of the intentional tort of false imprisonment.

73.     How far must the claimant go in proving intent?  Does he need to show the defendant positively wished to imprison him or is it sufficient if he shows that the defendant foresaw that imprisonment would be the consequence of his action? Is recklessness as to the consequence sufficient?  In my view, mere foresight of the likely consequences would not be sufficient.  However, in the criminal law, a reckless disregard of the consequences is taken as sufficient to satisfy the requirement of intention.  I think that a similar standard should be applied in the tort of false imprisonment.  So I would hold that, if the defendant realises that the likely consequence of his act or omission will be that the claimant is imprisoned and carries on with that act (or omission – see above) regardless of that likely consequence, that will amount to false imprisonment, provided of course that the other requirements are satisfied.

74.     In the present case, I do not think it could be said that the prison officers actually wished that the prisoners should be confined to their cells all day.  However, it is clear that they foresaw that that was likely to happen and they went ahead with their strike action regardless.  I would hold that the act (or omission – see above) did carry the requisite degree of intention.

The claimant’s claim against the Prison Officers’ Association failed on other grounds, but Smith LJ’s obiter comments reflect an interesting alignment between the intent requirements in tort and criminal law.

Making contact: what is ‘touching’ in battery?

 

Airzooka

Airzooka (Photo credit: Riude)

Ben Fitzpatrick, a law academic at York Law School, has blogged on Battery and the ‘touching’ requirement, in a criminal law context. He discusses principles which translate well to the tort of battery.He raises the question whether using an ‘Air Zooka’, a toy which propels a blast of air towards a target, could meet the requirement in the criminal law of battery that there be ‘touching’, or ‘the application of force’. The same point arises with, for example, a hairdryer.

The ‘touching’ requirement is seen as an essential cornerstone of the tort of battery. In Cole v Turner (1704), it was said that ‘the least touching in anger is a battery’ and in F v West Berkshire Area Health Authority (1990), Lord Goff noted that ‘Any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery.’

Ben suggests that:

‘If the essence of battery is the violation of the bodily integrity of [the target] (at however minor a level) through the actions of [the perpetrator], then we might ask what is the difference. Both could interfere with [the target’s] interests in a similar way, by, for example, leaving [the target’s] hair out of place.’

As Tony Weir noted in his Introduction to Tort (2004):

‘…no one in Britain, no one, can justify deliberately touching even a hair on [a claimant’s head], or entering her garden – much less depriving her of her liberty – merely on the ground that it was reasonable to do so, or on the more insidious ground that he reasonably thought that he was entitled to do so.’

You might be forgiven for thinking, at this point, that academics are over-concerned with their hair being out of place, but is the real issue a question of the degree of interference? Trespass to the person is actionable per se, i.e. without the need for a claimant (‘C’) to prove any actual harm or damage from a defendant (‘D’s) actions. This reflects the policy or protecting every person’s right to bodily intregrity.  If there is no harm, then C. can still succeed in an action in trespass to the person, but risks recovering nominal damages only. The more harm that C. can establish, the higher any award of damages.

Inevitably, everyday life involves some contact from others, and the tort of trespass to the person recognises this with a notion of implied consent: we are all taken to consent to a degree of contact from others in the course of everyday life.  When the bounds of this are exceeded, consent cannot be implied.  The courts have looked to other tools to control tort claims in this area, such as the notion of ‘hostility’, but the scope of ‘hostilty’ is far from clear – if indeed it needs to be present.

Can it be said that unaware target of a directed blast of air consents to that activity? Does that stretch beyond the parameters of implied consent to contact in everyday life?

At one end of the spectrum, Ben Fitzpatrick suggests the example of a person breathing on another. There is clearly no touching, applying conventional principles, but should the requirement of ‘touch’ be relaxed to include this unwanted conduct?  It is suggested not.  Persistent behaviour may well be more suitably dealt with under the provisions of the Protection from Harassment Act 1997.

If the scope of implied contact in everyday life is wrapped up with a rationale based on the degree of force, where does that leave us with other examples of where there is no ‘touching’ but a similar efect, at the other end of the spectrum?   What if we were concerned not with D. intentionally targeting an ‘Air Zooka’ at C., but instead a powerful hairdryer, leaf blower or the industrial rotors in a wind tunnel within which C. is standing? Is there a difference between a stream of air and, say, a focussed beam of light energy from a laser, or sound energy from directed sound waves, such as those found in some museums, where sound is audible to a person standing under a shielded dome with a speaker, but not to others?  All involve the transfer of energy and pressure by D. towards C.

 

Witness statements and fighting on all issues

In Nicholls v Ladbrokes Betting and Gaming Limited [2013] EWCA Civ 1963 , the defendant’s appeal in an employer’s liability case was upheld.  Jackson LJ, dissenting, made some observations about the conduct of the defendant employer in the litigation, particularly in respect of the deployment of witness evidence and expert evidence.  He went on to deprive the successful defendant of 20% of its costs incurred up to and including the trial, as a consequence. The majority of the Court (Tomlinson and Floyd LJJ) agreed with his decision on costs. Jackson LJ noted:

69.     Before parting with this case I wish to express my concern about the manner in which the defendant has conducted its defence.  The defence of any personal injury case is a serious task, to be undertaken in a fair and responsible manner.  It is inappropriate to serve witness statements which refute every allegation, whether right or wrong.  It is also inappropriate for an expert witness to provide a partisan report which backs up his client at every turn.

70     For the avoidance of doubt, I make no criticism of Ms Foster’s oral advocacy.  Ms Foster was entirely fair and helpful in her submissions to this court, as I am sure she was in the court below.  As my Lords rightly say, the criticisms of the claimant’s conduct during the robbery were not pursued at trial.  The fact remains, however, that the vast majority of personal injury actions settle before trial on the basis of the written evidence served.  Therefore the written evidence matters, even if a party knows that it will abandon certain points in the event of a trial.

71.     As explained in paragraph 68 above, this appeal is allowed and the claimant’s claim is dismissed.  The defendant will recover costs of the action, except that it will be deprived of 20% of its costs up to and including trial in order to reflect its unsatisfactory conduct of the litigation.