Archive for April 26, 2012

Drink-driver blames steak and ale pie for taking him over the limit | Manchester Evening News – menmedia.co.uk

Drink-driver blames steak and ale pie for taking him over the limit | Manchester Evening News – menmedia.co.uk.

A driver caught behind the wheel while drunk claimed he could have been sent over the limit by a steak and ale pie. Lee Handford, 38, came up with the excuse as he begged magistrates not to ban him from the road. The court heard he was pulled over by police after he was spotted speeding – with officers immediately smelling alcohol on him. Handford, of Westvale Road, Timperley, was made to take a breathalyser test and was found to be almost double the legal drink-drive limit. He told magistrates in Macclesfield that he had not drank ‘excessively’ before being stopped by police in Little Bollington, Cheshire, and that the steak and ale pie he had for dinner may have taken him beyond the legal limit. Defending himself in court, Handford asked magistrates not to give him a driving ban because he would lose his job working for his father. He said: “I am truly sorry for what I did. It will affect me for the rest of my life. I will likely lose my job. I didn’t feel like I had drank excessively. The steak and ale pie may have taken me over the limit.” Handford was pulled over by police on Lymm Road in Little Bollington on March 19, the court heard. Officers had become concerned by his Renault van after he was spotted exceeding the speed limit at around 6.50pm. When he was stopped by officers, Handford admitted he’d drunk alcohol 10 minutes earlier. He recorded 61mg of alcohol in 100ml of breath when breathalysed. The legal limit is 35mg. Handford pleaded guilty to drink driving at court. Magistrates banned him from the road for 16 months, fined him £165 and ordered him to pay £85 costs. Insp Stuart York from Cheshire police told the M.E.N there is never any excuse for being over the drink-drive limit. He said: “It is a risk which can have tragic consequences as reactions and judgement are far slower leading to the increase of the possibility a collision. Not only was he putting himself at risk he was also putting other road users lives at risk. “We will continue to target those who gamble with their own lives and others by getting behind the wheel of a vehicle knowing they have consumed alcohol. Handford is now paying the consequences for his actions.” Handford declined to comment any further when approached by the M.E.N. Book a Nissan Test Drive Now!

Read more at: http://menmedia.co.uk/manchestereveningnews/news/s/1492236_drink-driver-blames-steak-and-ale-pie-for-taking-him-over-the-limit

Chandler v Cape Plc [2012] EWCA Civ 525 (25 April 2012)

Chandler v Cape Plc [2012] EWCA Civ 525 (25 April 2012).

Court of Appeal rules parent company owed direct duty of care to employee of its subsidiary regarding safe system of work

Will the legal aid bill be the end of the ambulance-chasing lawyer? | Jon Robins | Law | guardian.co.uk

Will the legal aid bill be the end of the ambulance-chasing lawyer? | Jon Robins | Law | guardian.co.uk.

For all the scaremongering about a compensation culture, ignorance of rights causes more harm than the bringing of unmeritorious legal claims

Jon Robins
guardian.co.uk, Wednesday 25 April 2012

The MoJ claims the legal aid bill will ‘save £350m and end an ambulance-chasing culture that taxpayers cannot afford’ Photograph: Michael Kemp / Alamy/Alamy
How do you explain a sprawling legislative monster like the legal aid, sentencing and punishment of offenders bill (LASPO)? More often than not, commentators invoke the spectre of the compensation culture and reach for a cliché.

The Ministry of Justice itself tells us that the legal aid bill will “save £350m and end an ambulance-chasing culture that taxpayers cannot afford”. “Whenever you hear of a stupid case of ‘health and safety’ dictatorship, it’s these people – not ‘human rights’ or ‘political correctness’ – who are to blame,” fumed Peter Hitchens last year in a characteristically intemperate attack on ‘a new caste of greedy, cynical ambulance-chasing lawyers’. “That’s why councils ban cheese-rolling festivals and veterans’ parades.”

Frankly, I’m all for Peter Hitchens taking part in all the life-threatening, cheese-related activities he wants to. There is an interesting debate to be had: as a society, do we claim too much or not enough (through ignorance of our rights and as a result of an imbalance of power between the sides)?

In the last few months as the legal aid bill has made its way through parliament we have had much about the former and nowhere near enough about the latter.

Of course, it’s entirely possible that we do both: it might be as easy to bring a trumped up whiplash claim as falling off a log (as Hitchens suggests); but try enforcing your legitimately-held rights against the boss who has just sacked you or the landlord who wants you out on the streets? Not so easy.

There is a dangerous conflation of ideas in the debate around the bill: it will slash legal aid and defeat the compensation culture. The issues are separate and complex.

What do ministers mean by the compensation culture? In December 2010, David Cameron, as leader of the opposition, appointed Lord Young of Graffham, who served in the Thatcher administration, to review health and safety laws. He found that,

“behind the myth, the truth behind health and safety hysteria, the problem of the compensation culture prevalent in society today is one of perception rather than reality”.
It was refreshingly clear-sighted but hardly surprising conclusion. ‘Many of the stories we read and hear either simply aren’t true or only have a grain of truth in them,’ claimed a 2004 report for the Better Regulation Task Force.

That said, according to the Department for Work and Pensions there has been a 52% rise in the number of motor claims to 790,999 last year. Earlier this year Cameron recently called Britain “the whiplash capital of Europe” with more than 1,500 claims a day. After an “insurance summit” (representatives of consumers and accident victims apparently not welcome), the PM pledged to slash the £1,200 fee for lawyers on small personal injury claims. Cameron was “determined to tackle this damaging compensation culture” and stop “trivial claims, free up businesses from the stranglehold of health and safety red tape” etc… etc. The “road accident tail” is “wagging the civil justice dog”, the Access to Justice Action Group has argued.

It was 12 years ago that legal aid for personal injury cases was scrapped. New Labour created the regulatory environment to allow market forces to enable accident victims without legal aid to have access to justice. To put it another way, they created a compo culture to fill the justice gap.

In particular, ministers reformed the original no win, no fee model through its flagship Access to Justice Act 1999. They did this by providing for the recovery of the insurance premium (covering your exposure to the other sides’ costs if you lose) plus the success fee (rewarding your lawyer for taking the risk of not being paid if you lose) from the losing party.

LASPO will scrap the recoverability principle – preventing you from recovering your insurance costs and success fees from the losing side. That regulatory change directly led to non-lawyer claims management companies udrumming up claims through TV advertising campaigns and, if necessary, passing them on to lawyers. There was an accident gold rush led by the old Claims Direct which quickly became a household name as a result of a saturation TV campaign inspired by tasteless US-style marketing tactics (“Where there’s blame, there’s a claim” and so on).

Claims Direct was signing up 5,000 new clients a month at the height of its powers. The other market leader TAG (The Accident Group) conquered 25% of the personal injury market in less than two years. Both went bust within two years.

Putting to one side the questionable antics of claims companies (hard sell, cold calling etc), many legitimate accident victims were ripped off and their damages consumed by the exorbitant costs of claims companies and lawyers.

It took the last government six long years to set up a watchdog despite repeated consumer scares drawing attention to the industry’s worst excesses. Now there are apparently some 2,500 claims companies registered for personal injury work. A freedom of information request recently revealed that 734 claims companies were “cancelled” (or closed down) by the MOJ regulator in the last 12 months, partly prompted by 9,570 complaints from the public.

The legal aid bill will ban referral fees which lawyers pay to claims companies – the payment of which Jack Straw recently lambasted as “a lucrative and self-serving merry-go-round” (conveniently overlooking his government’s role in this sorry saga). The expectation is that the ever-changing claims industry will transfer to ABS (alternative business structure) status en masse under the Legal Services Act 2007. The ABS structure means claims companies can handle their caseload in-house through their own lawyers.

For all the compo culture scaremongering, ignorance of rights causes far more harm in our society than the bringing of unmeritorious legal claims. The legal aid bill will scrap £350 million from the £2.2 billion legal aid budget – and it does that by pretty much abolishing advice for social welfare law and family advice. The Legal Action Group estimates up to 650,000 will be removed from access to legal aid.

At the heart of LAPSO there is a vacuum. ‘Access to justice is the hallmark of a civilised society,’ says the justice secretary Ken Clark. Clarke’s assertion is meaningless unless people have an awareness of the kind of rights that they have under the law. LASPO is depressingly silent on that point.

Pupillage Applications

Dear All,

It’s my favourite time of year. Pupillage application time. The portal closes on Thursday and I will be reading the first sift of applications. In fact I’ve already started because I know there will be 230 plus.

We regularly receive 235. It may be one or two higher or lower but not by much. Always struck me as odd that but there you have it: 235 x 10 pages or so.

I know what it means from your side of the chasm that has to be leapt to land in the mythical world of pupillage. I was there not long ago. Let me tell you what it’s like from my side:

Firstly, the mechanics of it. Yesterday I printed the only 27 applications made in good time. Yes, 27 as it stands but it will be 235 by Thursday. It’s the same every year. I used to get my hopes up when looking 24 hours before the deadline and seeing only 50 applications; now I know that you will all do it at the last minute and trust your future careers and lives to your PC, a server run somewhere by someone you’ve never met and a broadband connection that you know has failed in the past.

A few years ago the system would crash regularly. I went to London to sit on the Pupillage Portal Review Group to see if we could improve it. The hardware and software suppliers simply couldn’t believe the last minute flurry of activity each year. One year they told us that it would be bombproof the following year. Wrong. You pesky applicants still managed to crash it by gambling with your futures at 5 minutes to deadline.

At my most difficult I have malicious thoughts about binning all applications made within the last hour before deadline. Are we so unimportant to you? Would you book your holiday flights in the last hour before you wanted to be sure you could have a holiday? Are you going to run your practice within our Chambers in such a shambolic, last-minute way?

Printing those 27 applications came to 264 pages and took one of Chambers’ main printers out for 15 minutes or so. Cue justifiably grumpy senior member of Chambers waiting for his urgent material from the printer. Ironically that’s why I printed those 27 early. Last year I printed them all at once and it took out a printer and an office junior for ages. And the same senior member of Chambers waited for hours for his document by the time the printer had been reloaded repeatedly, de-jammed, rested, cooled, re-toned and pensioned off. 2,350 sheets of paper. That’s why they call it the stack.

Incidentally the real reason I went to London to help the Bar Council with the Portal Review Group was to cut the word limits. I campaigned hard to slice 150 words from here, 200 from there, erase that duplicate question. Saved something like 1900 words one year and some more the next. Net result? Saved myself reading approximately half a million words every year. Has it stopped us finding the best candidates? Nope. Just saved hours of my life.

The next logistical problem is how do we do it? Every set of chambers will have a different approach. We are of the view that one person needs to read all applications because how else do you compare and contrast? Ten different people reading a tenth each will result in unfairness. So I will read all 2,350 pages. Every word. A ring binder, I think, takes 3-400 pages so it’s probably 5-6 ring binders of lovely small print.

So what do we look for? I have found interviewing and viva voce examinations fascinating over the years. We don’t have to fail people. We don’t have to give them a hard time. They do it all by themselves. Candidates and applicants enter the room with a clean slate, the panel full of expectation. Either you leave us with the expectation and, as you leave the room, we say to each other “S/he fills me with hope. They could go a long way etc etc” or you snatch it away from us by saying and doing silly things that we didn’t want you to say and do.

And its just the same with written applications. You snatch away the reader’s hope all on your own.

Get used to it – Everyone has qualifications as good as yours. Many will be better. Got a first from Redbrick? Someone has a first from Oxbridge. Got a first from Oxbridge? So has this other guy.

You all have outstanding A levels. Without being drawn into the “A-levels have got easier since my day” row, they simply do not help us discriminate any more. (Not a rude word, discriminate, by the way. It’s unfair discrimination that is naughty.) If you all have the same A-levels what’s the point of it being on the form? You might as well tell us that you all have ears.

So how do you not snatch away our hope as we read your applications? In a written application…..drum roll….write well. Please.

Use apostrophes. Know what a comma is for. Spell the words in English rather than Gobbledegook.

Remember this: You want us to envisage you as tenants of our Chambers within a couple of years. Sending out written work to our solicitors with our Chambers name on it. And a shiny corner to make it look nice. If you think for one minute that we would allow that to happen when you don’t know where the apostrophe goes in Magistrates’ Court or don’t know the difference between practice and practise or counsel and council (I kid you not) then please reconsider.

The word “I” should always be capitalised. It’s not an optional extra. You are not texting your m8. Please learn how to spell fulfil. And liaise. And their. And there. And if you could know the difference between “would have” and “would of” that would be nice.

I HATE the word insight. I guarantee that almost every applicant will have had a valuable insight into this, a helpful insight into that, a rare insight of something else. It’s not your fault, its a very useful word. It’s just that everyone uses it to death.

Oh, and please don’t lie. We have got memories and we have had cases where someone’s qualifications seem a little better than remembered. A quick trawl through the computer reveals last year’s application and the changed A-level results are plain to see.

That’s probably enough ranting. How does the system work? After the first sift the top slice are handed to head of pupillage who goes through them all in as much detail. We then invite somewhere in the region of 12-15 people for first interview. Nice and easy. As I say there’s no need to give people a hard time, the best candidates just stand out all by themselves. The agreement between panellists is remarkable; we all see the same things in the best people. There’s always some debate about where the cut goes and on the exact scores that people generated but by and large there are no difficulties in reaching a consensus.

Second interview is a tougher gig. Unarguable propositions to be argued, that sort of thing. We try and have pretty much the same core panel each year for the second interviews as it allows us to compare and contrast not only within that year’s candidates but also with those from previous years. It’s great for putting apparent shortcomings into perspective. What might appear to be a negative doesn’t look so problematic when someone remembers so-and-so from two years ago who created a similar impression and look how well s/he turned out…

We work really hard at it. Most of you do so its only fair and, frankly, its our future. We want the very best people, not just good people. And we are known for keeping our pupils as tenants, even if further refinement is needed. So we have to get it right at this early stage.

At this stage in writing I’ve been through some 20 or so applications. Some are excellent. I have seen countless Magistrates’ Courts with no apostrophes or apostrophes in the wrong place. Say, 40?

I have seen council instead of counsel twice. Three out of 20 people think we’re on the Northern Circuit.
(Incidentally, if you’re going to do a cut and paste job please pay attention. One of my favourite gaffs was a few years ago now. Good application, very good in fact. Hovering above the yes pile until the very last word. “Trinity Chambers is where I want to be, I’ve always wanted to live and work in Wales.” A late snatch of hope that one.)

So what other cock-ups have I seen in the 20 or so applications from today? “Trinity Changers”. My name spelt wrong. It’s only 8 letters for heaven’s sake. Someone who is “clam” in a difficult situation. Someone who wrote only three words in telling us about their hobbies and interests and how they assist the application. Plenty of gibberish. At least 50 insights.

But also some very, very good writing. People with good qualifications who are clearly bright and paid attention to the application. You may know who you are. We think we know who you are. We look forward to meeting you soon.

Improving the odds: how to write a good pupillage application | Daniel Sokol | Law | guardian.co.uk

Improving the odds: how to write a good pupillage application | Daniel Sokol | Law | guardian.co.uk.

Improving the odds: how to write a good pupillage application
Pupillage deadline is imminent. Pupil barrister Daniel Sokol’s main advice is not to be dull

Daniel Sokol
guardian.co.uk, Friday 20 April 2012 12.08 BST

Deadline for pupillage applications is next week. Daniel Sokol offers tops on how to improve your odds

The deadline for pupillage applications is imminent. Thousands are hoping to survive the brutal cull from application to interview. At this stage in the process, the cards have been dealt. It is too late to improve degree results, win a moot, or write an article for the Modern Law Review. As the philosopher said, “if you ain’t got the cards, you ain’t gonna win”. Here are some tips (my personal view) on improving the odds for those with good cards.

My main advice is this: don’t be dull. What makes an application boring is rarely the subject matter – almost anything is interesting if framed appropriately – but a combination of poor style and dry content. Strive for a clear and succinct prose, eloquent but natural. Ironically, a natural style requires much effort. Every sentence, every word, must be carefully chosen. If a word is unnecessary, remove it. If a word is too often repeated, replace it. As a general rule, use the active voice.

One of the most important lessons I have learned during pupillage is attention to detail. Barristers must develop a passion for accuracy. This trait should emerge from the application. After dozens of drafts, when – with heavy eyelids – you are convinced the application can no longer be improved, show it to others. This is no time for timidity or embarrassment. The poet Paul Valéry said that a poem is “never finished, merely abandoned”. Adopt the same mentality with the application.

Ask yourself why the reader should care about what you write. What are you trying to convey? One of my interests was close-up magic. I wanted to include this in my application, but I was aware that, like chess and stamp-collecting, magic suffers from a high geek index. It is also, at first blush, unrelated to the role of barrister. The challenge was to compose a vibrant passage that would impress rather than bore, and explain the relevance of magic to practise at the bar. This was the end result (commentary in square brackets):

“As a semi-professional magician [technical skill], I have performed at balls and weddings [social interaction] but also in the bustling Djamaa al Fna square in Morocco [travelled], hospital wards [link with interest in clinical negligence], rowdy restaurants on Friday nights [real life], children’s parties [warms the frosty heart of the barrister], and, most challenging of all, nursing homes [why so? Stimulates interest]. A good magician must be calm under pressure, possess a flawless technique, and present the effect in a clear, engaging and confident manner. Many of these qualities are common to good barristers [relevance].”

As with submissions to a judge, it is best to start with the strongest points. The most impressive achievements should go first. It is remarkable how often an accomplishment lies buried in the middle of an otherwise dry paragraph. Give your finest achievement pride of place, at or near the top of the section and parade it in its full glory.

Stories are an excellent way to generate interest. They are more memorable than mere statements (“I’m very good at this and that”). In light of the word limit, they must be brief and meaningful. Again, this will take time. Oscar Wilde reportedly started a letter to a friend with this apology: “sorry to write such a long letter; I didn’t have time to write a shorter one”. Prior to the editing stage, amble in the attic of the brain in search of the most appropriate story. In a corner of my attic, I stumbled upon the following trinket which, after much linguistic dusting, appeared in my application:

“Last month [recent event], the guest speaker failed to turn up at a meeting of the Osler Club of London, a medical society founded in 1928 and teeming with eminent clinicians [involvement in medical society, link to interest in clinical negligence]. When it was apparent that the speaker would not appear, I asked the visibly concerned President if he would like me to talk for an hour on a topic of interest [initiative, confidence, willingness to help]. He said yes. I spoke, unprepared, for the allotted time. [ability to improvise, mastery of subject, public speaking]”

The application form is, in part, an exercise in written advocacy. The goal is to persuade the decision-maker, in a few minutes, to place the form in the “interview” pile. If, upon answering a substantive question, you suspect other candidates will have provided a reply of equal quality, think of a better one. The competition is too fierce for average or ordinary answers. Strive for excellence, develop the barrister’s passion for accuracy, and rummage in the attic for diamonds that will sparkle.

Daniel Sokol is a pupil barrister and Honorary Senior Lecturer in Medical Ethics at Imperial College London. He sat on the medical school admissions panel at St George’s, University of London

BBC News – NHS and civil servants plan pension strike in May

BBC News – NHS and civil servants plan pension strike in May.

NHS workers and civil servants are to stage a one-day strike in May over their pension dispute.

The Unite trade union, which has 100,000 members in the NHS, will walk out on 10 May, a day after the Queen’s speech is to set out the NHS reforms.

The PCS union said its members in the civil service would also strike.

But the protest is likely to be much smaller than in November, when more than a million public-sector workers staged a national strike.

In November, more than 20 public service unions went on strike.

The government says that pension benefits are too high for public-sector workers and the changes will eventually save the government tens of billions of pounds.

‘Clear message’
Unite’s health members voted by more than 9-1 to reject proposed pension changes.

Unite says its NHS members, including health visitors, pharmacists and paramedics, face paying an average of £30-a-month more for their pensions.

“This disgraceful attack comes against a backdrop of pay freezes and the threat of regional pay in the public sector,” said Unite’s Rachael Maskell.

The National Union of Teachers said it would not be striking in May but offered its “support” to those unions that would be.

The PCS union has about 290,000 members in more than 200 departments and agencies of government across the UK.

PCS general secretary Mark Serwotka said: “The ongoing programme of industrial action with other unions we have agreed sends a clear message to government ministers that we do not accept their unnecessary plans to force public servants to pay more and work longer for less in retirement.”

Civil – Civil Procedure Rules

Civil – Civil Procedure Rules.

58th Update 6 April 2012 – Supplement
The 58th Update to the Civil Procedure Rules is supplemented by further changes contained in a statutory instrument and Practice Direction Making Document. The amendments are as follows:
Part 71 Orders to obtain information from judgment debtors
Part 72 Third Party Debt Orders
Part 73 Charging Orders, Stop orders and Stop notices
Schedule 1, CCR Order 27 Attachment of Earnings
PD70 Enforcement of Judgments and Orders
Amendments are made to remove the obligation to issue applications for certain types of enforcement and Orders to Obtain Information for designated money claims issued at the Salford Business Centre that have not subsequently been transferred out.
For Orders to Obtain Information, Charging Orders and Third Party Debt Orders the application may be made court for the district in which the judgment debtor resides or carries on business.
For Attachment of Earnings there is no longer a requirement to write to the court of judgment requesting transfer, the application may be filed in the appropriate court in accordance with CCR 27 Rule 3.
Amendments are made to allow for the automatic transfer of proceedings from Northampton County Court to the relevant court in these circumstances.
There is no change to the process for issuing warrants of execution; applications should be made to the court of judgment.
The amendments come into force on 19 March 2012.
PD75 Traffic Enforcement
Amendments are made to the Practice Direction supporting Part 75 of the Civil Procedure Rules: Traffic Enforcement Centre which allow enforcement in the county court of various unpaid charges in respect of waste enforcement and littering offences. The provisions are limited to offences such as placement of waste receptacles, the offence of littering from a vehicle and offences relating to builder’s skips, within London Boroughs. The amendments to the Practice Direction come into force on 6 April 2012.
Insolvency Proceedings Practice Direction
The Practice Direction has been revised and comes into force on 23 February 2012.
Preview
You can preview the rule changes in this amendment by viewing The Civil Procedure (Amendment) Rules 2012 Statutory Instrument 2012 No. 505 (L. 2) (opens new window). You can also view the Practice Direction amendments by viewing the Practice Direction making document (PDF – opens new window). The Insolvency Proceedings Practice Direction can viewed at (PDF – opens new window).
58th Update 6 April 2012
The 58th Update to the Civil Procedure Rules introduces changes in a number of areas. The amendments to the Rules are contained in two Statutory Instruments. The first contains Rules for implementation of the Terrorism Prevention Implementation Act 2011; the provisions came into force on 14 December 2011. The second contains Rules to facilitate the processing of work through the County Court Money Claims Centre and come into force on 19th March 2012. Amendments contained in the Practice Direction Making Document come into force on various dates.
Please note:
Part 65 – Proceedings relating to Anti-social Behaviour and Harassment
Amendments made to Part 65 in the 55th Update (April 2011) in relation to gang-related violence injunctions in respect of persons aged 14-17 came into force on 9 January 2012 under SI 2011 No, 3016 The Crime and Security Act 2010 (Commencement No.4) Order 2011.
Part 2 Application and interpretation of the Rules
Amendments are made to Part 2 to include definitions of two new terms “designated money claim” and “preferred court”. The first term “designated money claim” defines a money claim issued in the county court under Part 7 to which no special procedures under the Rules apply. The second term “preferred court” is a county court specified by a claimant to which a designated money claim may be transferred in certain circumstances. The changes are made in relation to the setting up of the County Court Money Claims Centre.
Part 7 How to start proceedings – the claim form
Amendments are made to facilitate the processing of all designated money claims at the County Court Money Claims Centre The Centre situated in Salford will manage the early stages of the claims including admissions, default judgments, acknowledgement of service, defences and allocation questionnaires. Consequential amendments are made to Parts 2, 3, 12, 13, 14, 23, 26 and 30 and Practice Directions 7A and 7D.
Part 23 Applications
Amendments are made to allow for pre-action applications to be made in any county court where the claim is a designated money claim.
Part 26 Case Management – Preliminary Stage
Amendments are made to the transfer provisions to allow the automatic transfer of cases from the County Court Money Claims Centre to a county court in specific circumstances.
Part 26 Case Management – Preliminary Stage
Amendments are made to provide that the court will no longer automatically dispatch an allocation questionnaire to parties following filing of a defence, unless a party is unrepresented.
Part 80 Proceedings under the Terrorism Prevention and Investigations Measures Act 2011
A new Part is inserted containing Rules about proceedings under the Terrorism Prevention and Investigation Measures Act 2011. The Act provides for the imposition of measures by way of TPIM notice on individuals whom the Secretary of State reasonably believes to be, or to have been, involved in terrorism-related activity. The new Rules modify the Rules by placing a duty on the court to ensure that information is not disclosed contrary to the public interest and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty (for the purposes of Part 80).
PD2A Court Offices
Amendments are made throughout the CPR and accompanying material to remove references to HMCS and to substitute HMCTS to reflect the creation of the new Agency. Amendments are made to website addresses to reflect the rationalisation of government websites. Amendments are made to practice directions 2A, 5B, 5C, 7C, 7E, 23A, 32, 52,55B, PAP for Low Value Personal Injury Claims in Road Traffic Accidents.
PD51B Automatic Orders Pilot Scheme
The pilot scheme is extended until 30 September 2012.
PD51F Non-Disclosure Injunctions Information Collection Pilot Scheme
The pilot scheme is extended for a period of two months to 30 September 2012.
Pre-Action Protocol for Judicial Review
Amendments are made to allow an alternative email option of sending claims to the UK Border Agency, and a change of the postal address for receipt of claims is made.
Pre-Action Protocol for Claims for Damages in relation to the physical state of commercial property at termination of a tenancy (The “Dilapidations Protocol”)
A new protocol is introduced. There is a consequential amendment to the Pre-Action Conduct Protocol.
Changes to forms
The following forms are amended
N1 Claim form (Part 7)
N1A Notes for Claimant
N149 Allocation Questionnaire (Small Claims Track)
N161 Appellant’s notice (All appeals except small claims track appeals)
N161A Guidance notes on completing N161
N161C Guidance notes on completing N161 Appellants notice for appeals relating to deduction orders
Preview
You can preview the rule changes in this amendment by viewing The Civil Procedure (Amendment No.3) Rules 2011 Statutory Instrument 2011 No. 2970 (L. 21) (opens new window) and The Civil Procedure (Amendment No. 4) Rules 2011 Statutory Instrument No. 3103 (L.23) (opens new window). You can also view the Practice Direction and Pre-Action Protocol amendments by viewing the Practice Direction making documents (PDF – opens new window).

Nuisance | The Law Gazette

Nuisance | The Law Gazette.

Nuisance

Smell – Damages – Test case in group action brought by householders seeking damages for odour nuisance from defendant

Barr and others v Biffa Waste Services Ltd: CA (Civ Div) (Lady Justice Arden, Lord Justices Carnwath, Patten): 19 March 2012

The claimants were residents in properties in the vicinity of a waste tip operated by the defendants. They issued proceedings for nuisance by smell.

The claimants contended that they had common law rights in nuisance which had not been affected or excluded by the relevant environmental and landfill legislation including, inter alia, the Environmental Protection Act 1990, the Environment Act 1995 and the related regulations. The defendant submitted that it was unfair and unrealistic to ignore the legislation and the terms of its permit issued pursuant to regulation 10 of the Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000/1973, so that it could comply with all its numerous obligations and the detailed provisions of its permit, and yet still be liable to the claimants in nuisance. The judge found in favour of the defendant, and dismissed the claims. The claimants appealed.

The issue was whether the common law test of nuisance had been modified by the relevant legislation, and the terms of the specific waste permit granted to it. The appeal would be allowed.

It was well settled that there was no absolute standard; it was a question of degree whether the interference was sufficiently serious to constitute a nuisance. That was to be decided by reference to all the circumstances of the case. There had to be a real interference with the comfort or convenience of living, according to the standards of the average man. The character of the neighbourhood had to be taken into account. The duration of an interference was an element in assessing its actionability, but was not a decisive factor. Statutory authority might be a defence to an action in nuisance, but only if statutory authority to commit a nuisance was express or necessarily implied.

The latter would apply where a statute authorises the user of land in a way which would ‘inevitably’ involve a nuisance, even if every reasonable precaution was taken. The public utility of the activity was not a defence. There was no principle that the common law should ‘march with’ a statutory scheme covering similar subject-matter. Short of express or implied statutory authority to commit a nuisance, there was no basis, in principle or authority, for using such a statutory scheme to cut down private law rights (see [36], [46] of the judgment).

The case was governed by conventional principles of the law of nuisance, which were well settled. In the circumstances, the defendant’s permit had not changed the essential ‘character’ of the neighbourhood, which had long included tipping. The change was in the introduction of a more offensive form of waste, which produced a new type of smell emission. The permit had not, and had not purported to, authorise the emission of such smells.

Far from being anticipated and impliedly authorised, the problem had not been covered by the original waste management plan, and the effects of the change in waste handling had come as a surprise to the defendant and the Environment Agency.

There was no requirement for the claimants to allege or prove negligence or breach of condition. There was no general rule requiring or justifying the setting of a threshold in nuisance cases. By adopting such a threshold, the judge had deprived some of the claimants of their right to have their individual cases assessed on their merits (see [36], [46] of the judgment).
Decision of Coulson J [2011] All ER (D) 25 (May) reversed.

Stephen Tromans QC, John Bates and Catherine Dobson (instructed by Hugh James) for the claimants; Ian Croxford QC and Thomas De La Mare (instructed by Nabarro) for the ­defendant.

Last rites for ‘Tesco Law’ | The Law Gazette

Last rites for ‘Tesco Law’ | The Law Gazette.

Tuesday 10 April 2012 by Paul Rogerson

‘Tesco Law’ is dead. Well, it’s not breathing. Next week the struggling retail titan will unveil its blueprint for the future after issuing its first profit warning for 20 years. Investors are clamouring for retrenchment, with rejuvenation of the flagging UK retail business seen as an urgent priority. Leading shareholders want Tesco to scrap its ill-starred US ventures and retail banking arm.

Tesco ‘needs to think long and hard about what it wants to be’, Legal & General Investment Management, which owns 4%, told the Sunday Times. All of which surely makes it inconceivable that the company will announce further significant diversification – particularly into legal services, where the market is uncertain and the returns mightily difficult to forecast.

Of course, ‘Tesco Law’ was only ever a convenient shorthand for the reforms set in train by Sir David Clementi. Publicly, the retailer has never shown any interest in legal services, though it is equally inconceivable that privately it has not at least considered their potential.

Tesco’s travails are instructive in the context of alternative business structures, nevertheless. They show that simply grafting a ubiquitous and (hitherto) untarnished brand on to a suite of customer services entirely distinct from the core business is not as straightforward as one might suppose. If it were, Tesco would already dominate retail banking (a dubious privilege, admittedly).

Yet it is now nearly four years since Tesco paid £950m to buy out Royal Bank of Scotland’s 50% stake in Tesco Bank – when ‘Fred the Shred’ Goodwin was still in his pomp. Customers are still waiting for the current accounts the grocer has been promising for years.

The UK’s supermarket sector may be dominated by four major chains, but it remains brutally competitive. In an environment where discretionary spending is being squeezed like never before, it’s hard to see that Asda, Sainsbury’s and Morrisons will want to divert a slice of their reserves to launching a legal services offer any time soon. Judging by the rate at which Sainsbury in particular is opening smaller outlets (I have two within 100 yards of my flat) it seems that the ongoing battle is presently being fought in the small convenience sector. And opening new shops is not cheap.

You will have spotted the flaw in my argument by now. What about the Co-op? Yes, it’s a relative minnow, but it is indisputably a grocery chain and wants to use an expanding retail network to build its legal services business.

But the Co-op is a very different beast. It’s the UK’s largest consumer mutual, owned by over 6 million people, with an enviable brand leverage at a time when the no-holds-barred Anglo-Saxon business model has fallen into disrepute. It has long had a diverse range of businesses, from doling out the ham salads at your auntie’s funeral to dispensing the drugs that failed to cure her through the UK’s third-biggest pharmacy chain.

And crucially, as a mutual, it is not under the same pressure as its quoted competitors to generate short-term gains for institutional shareholders. The Co-op can afford to play a long game.

This leads me to a prediction that may prove to be the worst since Gordon Brown declared an ‘end to boom and bust’. There is another diversified, giant, mutual retailer, that sells food through one of its subsidiaries, which has a brand every bit as appealing as the Co-op and could conceivably make real money from legal services.

Will ‘Tesco Law’ eventually be renamed ‘John Lewis Law’?

Hundreds of CMCs ‘cancelled’ by MoJ | The Law Gazette

Hundreds of CMCs ‘cancelled’ by MoJ | The Law Gazette.

Friday 13 April 2012 by John Hyde

The Ministry of Justice has closed down about one in five claims management companies in the past year, according to figures obtained by the Gazette.

A freedom of information request to the MoJ’s Claims Management Regulation department has revealed that 734 businesses were ‘cancelled’ in the 12 months up to the end of March. The closures were partly prompted by 9,570 complaints from the public. By the end of the financial year the number of authorised businesses stood at 3,018.

In the latest broadside against the sector, the banking industry alleged this week that claims management companies are slowing down the processing of legitimate claims over the mis-selling of personal protection insurance (PPI) by sending speculative letters to every bank.

Research by the Financial Times last month showed that Britain’s banks are now rejecting as spurious up to half of all compensation claims relating to mis-sold PPI. The Ministry of Justice has confirmed it has set up a dedicated team to deal with poor practices by some claims management companies who handle mis-sold PPI.

Anthony Sultan, executive member of trade association the Claims Standards Council, said the volume of closed companies did not mean there is widespread malpractice. ‘A lot of companies have decided it is not for them and they don’t want to be in claims. It’s very important for those heavily involved in the industry that the highest standards prevail and anyone who fails to meet them is exited from the sector.’

Sultan told the Gazette he would ‘condemn’ any firms involved in speculative claims. ‘It is not widespread, and the vast majority are regulated and operate in a sensible fashion,’ he said. ‘As in any industry you come across rogue traders but the trade body acts quickly to bring an end to it.’

The MoJ said record numbers of staff are being allocated to regulating claims management companies, both at its headquarters in London and its compliance office in Staffordshire. The number of staff has risen to 57, up from 32 in 2007 when the MoJ took charge of claims management regulation.

The MoJ has cut the estimated cost of claims management regulation, financed by the companies themselves, by 17% to £2.5m for 2012/13. But rising staff costs and an expected fall in the number of companies led to higher charges to firms.