News Category 3
Editorial: Sentencing for International Crimes - Aidan Ellis, Temple Garden Chambers
05/10/16. I hope I will be forgiven for an excursion outside the four walls of personal injury law in this month’s editorial. The occasion is the conviction of Mr Al Mahdi for the war crime of attacking 10 religious and cultural monuments in Timbuktu. The case attracted media coverage, not only as one of the International Criminal Court’s small but growing number of convictions, but also as a rare case in which damaging important cultural property was successfully prosecuted.
One aspect of the decision that has attracted relatively little debate was the sentence. Mr Al Mahdi was sentenced to 9 years imprisonment. To put that in context, the International Criminal Court has imposed the following sentences: Mr Lubanga, 14 years for enlisting and conscripting children and using them in active hostilities; Mr Katanga, 12 years for four counts of war crimes (murder, attacking a civilian population, pillaging and destruction of property) and one count of crimes against humanity and Mr Bemba, 18 year for crimes against humanity and war crimes (including murder, rape and pillaging).
In its sentencing decision, the Court made the point that crimes against property are generally less severe than crimes against people. Few would argue with that and, on its face at least, that principle appears to be reflected in the sentence – with Mr Al Mahdi receiving the only sentence of less than 10 years so far imposed by the International Criminal Court. But Mr Al Mahdi had some powerful and, in the ICC’s history unique, mitigation. He pleaded guilty. In domestic criminal cases, that alone could attract a discount of up to one third off the sentence. In addition to the guilty plea, he co-operated with the Prosecution’s investigation, he showed genuine remorse and called on others to avoid similar conduct in the future.
Comparing the sentences in two criminal cases, like comparing awards of general damages, is always invidious; no two cases are the same. But, given the strong mitigation and the guilty plea in Mr Al Mahdi’s case, it is worth asking whether the sentence of nine years imprisonment is really consistent with the stated principle that crimes against property are less serious than crimes against people. If a significant discount was made for personal mitigation and the guilty plea, that must mean that without those factors his sentence would have been close to that imposed on Mr Katanga or even Mr Lubanga for crimes against people. It may be that the apparently high sentence reflects the unique nature of the UNESCO world heritage sites which were destroyed. Perhaps more clarity will come as the ICC’s sentencing jurisprudence grows.
Aidan Ellis
Temple Garden Chambers
Image cc flickr.com/photos/3059349393/3331431933
Claimant Loses QOCS Protection Following Discontinuance of NIHL Claim - Sarah Stutchfield, DWF
30/09/16. It is not uncommon for noise induced hearing loss claims to be issued without medical evidence and we have on a number of occasions successfully applied to have claims struck out for failing to comply with the CPR. In this recent decision not only was the claim struck out, but as this was a post-LASPO case, the claimant automatically lost his QOCS protection. Because the strike out application did not have to involve considerations of fundamental dishonesty, the insurer was in an improved position as there was no need to seek the court’s permission to set aside QOCS protection to be able to enforce the costs order. Sarah Stutchfield who acted for the defendant explains the decision.
Background
The letter of claim in this noise induced hearing loss case was dated 17 March 2015. Proceedings were issued on 22 August 2015 but not served until 17 December 2015. No medical evidence was served with the particulars of claim but the claimant's solicitors served a screening audiogram which had been conducted on 7 October 2015.
In the nine month period between the letter of claim and the proceedings being served, the claimant’s solicitors had been afforded ample opportunity to obtain medical evidence in support of their client's claim. However no reasonable explanation for the delay was forthcoming...
Image ©iStockphoto.com/nicolas_
Failure to Comply Leads to Dismissal of £60,000 Hire Claim - Mark Holmes, DWF
29/09/16. The Claimant’s failure to obtain relief from sanctions after he had failed to comply with an order to give disclosure and serve witness evidence meant that his claim was dismissed. The Claimant had claimed for personal injury and hire charges of over £60,000. The Claimant had initially obtained judgment by default against the First Defendant, although the Second Defendant, RSA, had gone on to file a Defence, outlining a number of concerns that they had about the case.
Senior Solicitor, Mark Holmes, who acted for RSA, reviews this case and on what basis RSA opposed the Claimant’s application for relief from sanctions. Once relief from sanctions had been refused, the Claimant attempted to correct his failure to serve witness evidence as directed, by serving his witness statement with a Hearsay Notice. As a result of the dismissal of the claim the Claimant was ordered to pay the Second Defendant's costs and also repay an interim payment made to the Claimant.
Background
The Claimant, Alexander Alves, sought damages for personal injury and a number of items of special damages including a claim for hire charges in excess of £62,000 following a road traffic accident said to have taken place on 23 January 2013, when it was alleged that he was struck by another vehicle being driven by My Kwai Suen (who was insured by RSA), who failed to give way at a junction.
The Claimant issued proceedings against Mr Suen, after which DWF successfully applied to join RSA into proceedings as a Second Defendant. A defence was filed on RSA's behalf putting the Claimant to strict proof of his case and outlining a number of concerns that the Second Defendant held. The matter was then allocated to the multi track with the case being listed for a two day trial...
Image ©iStockphoto.com/blueclue
Broadhurst v Tan - Patrick McCarthy, Horwich Farrelly
23/09/16. Claimant lawyers across the land rejoiced earlier this year following the Court of Appeal judgment in Broadhurst v Tan (2016) which ruled that assessed costs, rather than fixed costs, apply to cases where a claimant ‘beats’ a Part 36 offer.
However, whilst initially disappointing, as the defendant in the case we’ve been closely monitoring the impact of the ruling and have observed what appear to be a number of positive benefits for both sides.
Background
The case was one of two conjoined hearings – the other being Taylor v Smith – heard together as the judges in the respective earlier hearings had ruled in opposing ways.
Both cases concerned claims which had started under the Pre-Action Protocols for Lower Value Personal Injury claims which had subsequently left the Portal, and proceeded to final hearing...
Image ©iStockphoto.com/imagestock
Fatal Accident Dependency and Cultural Expectations: the Reported Cases - Gordon Exall, Zenith Chambers & Hardwicke
19/09/16. A number of recent cases I have been involved in have highlighted the need for care when dealing with claimants who have specific cultural expectations as to dependency. There are relatively few reported cases on this topic. It is worth looking at them.
KEY POINTS
Perhaps the major point to be made is to read the judgment in Amin -v- Imran Khan below. If a schedule of damages had been prepared, supported by appropriate evidence, then the fatal accident claim would have settled for an appropriate amount. The gathering of appropriate evidence is crucial to the claim.
KANDALLA -v- BRITISH AIRWAYS BOARD
In Kandalla -v- British Airways Board [1980] All ER 341 the plaintiffs two daughters, who were both doctors, died in an aircraft accident. The plaintiff was an Iraqi doctor and was aged 74 and his wife aged 68.
The judge found that the daughters would have supported their parents. The couple would have left Iraq in their old age to be supported by their daughters...
Image ©iStockphoto.com/nspimages
More Articles...
- Summary of Recent Cases, September 2016
- 'Another Twist in the Yellow Brick Road: Questions and Answers on the Assignment of CFAs Following Azim v Tradewise Limited [2016] EWHC B20 (Costs)' - Christopher McClure, John M Hayes
- Personal Injury Claims: An Opportunity for Reflection - Neil Sugarman, President, Association of Personal Injury Lawyers
- PI Claim by Tenant: SC Overules CA and Dowding & Reynolds - Ian Miller, 1 Chancery Lane
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