News Category 3
Editorial: The Boundaries of the Fast Track - Aidan Ellis, Temple Garden Chambers
21/09/15. The dividing line between the small claims track and the fast track has obvious significance because of the markedly different costs regimes which apply. As awards for general damages are pushed upwards, due to inflation and due to the 10% uplift now often applicable pursuant to Simmons v Castle, one side effect is that more cases are driven into the fast track. In practice, where does the dividing line now fall?
The basic principles will be familiar. The small claims track is the normal track for claims with an overall value not more than £10,000 and general damages for pain, suffering and loss of amenity of not more than £1,000. It is for the Court to assess the financial value of the claim. In so doing, the Court will inevitably have regard to the statement of value on the Claim Form. If the Court believes that the Claimant’s statement of value exceeds his reasonable expectation, it may order the Claimant to justify his valuation. Though the Court retains the discretion to allocate a low value case to a higher track for reasons, for instance, of complexity, in practice this discretion is rarely exercised. The result is that the critical question is often whether general damages are likely to exceed £1,000.
A natural starting point is to look at the JC Guidelines on minor injuries. Where the 10% uplift applies, the 12th edition provides that: injuries with a complete recovery in 7 days attract awards of up to £550; injuries with complete recovery in 7 – 28 days £550 - £1,100 and injuries with complete recovery within 28 days to three months £1,100 - £1,980. Thus, not surprisingly, injuries which resolve in less than 7 days are worth less than £1,000 and injuries which resolve in more than 28 days are worth more than £1,000. But minor injuries which resolve in 7 – 28 days fall into a bracket of £550 - £1,100. Minor injuries towards the top of this bracket might therefore be expected to push into the fast track. It is worth observing that this is one clear impact of the 10% uplift – without the uplift such cases would usually fall below £1,000 and hence into the small claims track. But with the uplift, it becomes arguable that minor injuries lasting close to 28 days spill over into the fast track.
The Guidelines in respect of minor neck injuries are even less conclusive. The lowest bracket, which applies to injuries which resolve within a few days, a few weeks or a few months attracts awards including the uplift of up to £1,705. Again, it should be clearcut that injuries which resolve within days are worth less than £1,000 while those which resolve in a few months are worth more than £1,000. But where does the dividing line fall? General guidance is necessarily hard to give, because much depends on the initial severity of symptoms and the presence of additional matters such as travel anxiety is often an aggravating features. But, the trend appears to be that neck injuries which resolve within two weeks attract awards in the region of £800. This suggests that, consistent with the guidelines for minor injuries, injuries which resolve in three weeks are likely to fall on or around the boundary of the fast track.
The dividing line between the small claims track and the fast track at general damages of £1,000 was set when the Civil Procedure Rules were first introduced in 1998. Simple inflation over the last 17 years would mean that an award worth £650 in 1998 would now exceed £1,000. The effect of inflation is now exacerbated by the 10% uplift to general damages imposed by Simmons v Castle. At the moment, the line in the sand at £1,000 roughly equates to minor injuries which resolve in three weeks. If inflation continues, it will not be long before injuries which resolve in two weeks exceed the threshold. In the long term, this can only strengthen the argument that the £1,000 limit should be increased.
Aidan Ellis
Temple Garden Chambers
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Costs Budgeting: Are Incurred Costs Untouchable? - Ian Miller, 1 Chancery Lane
20/09/15. How do you get around costs budgeting? One might have thought by incurring considerable costs before the CCMC: Practice direction 3E 7.4 states that the court may not approve costs incurred before the date of a budget. In CIP Properties Ltd v Galliford Try Infrastructure [2015] EWHC 481 Coulson J came up with an order which would prevent parties to litigation trying to get around the process. In the recent case of GSK Project Management Ltd v QPR Holdings Limited [2015] EWHC 2274 Stuart-Smith J made a similar order (will it become known as a ‘Coulson Order’ or a ‘CIP Order?)
In GSK Stuart-Smith J was managing the costs in a dispute over works carried out at Queens Park Rangers’ Loftus Road ground. The claim was essentially for £805,675 of unpaid sums due under the contract and there was a counterclaim for defective works.
The claimant’s costs budget was for £824,038 and it stated that over £310,000 had been incurred already. The budget therefore exceeded the sums at stake. The defendant’s budget was £455,554 in total although, as the judge commented, a comparison was not appropriate because...
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Collateral Damage - Liam Ryan, Ely Place Chambers
18/09/15. One of the more interesting aspects in the development of personal injury law over the last 25 years has been the acknowledgment that psychiatric injury can be not only as serious as physical injury, but a general acceptance that psychiatric injuries are substantial, real and not fictitious complaints fabricated to secure an award of damages.
The law has expanded to acknowledge this, and notably, by-standers to traumatic events may now seek damages for psychiatric injuries suffered as secondary victims (Alcock v Chief Constable of South Yorkshire Police[1992] 1 AC 310). Employees can seek compensation for stress at work caused by a variety of reasons, notably overworking (Hatton v Sutherland [2002] P.I.Q.R P241 C.A). Furthermore, with the increasing reach of the social media, and the ability of individuals to readily and freely communicate in a variety of mediums it was only a matter of time until the law of harassment was required to expand in order to deal with individuals who use these recently developed tools for improper means. It is notable that under section 3 (2) Protection from Harassment Act 1997 the civil remedy a Court may impose includes damages (among other things) for any anxiety caused by the harassment and any financial loss resulting from the harassment. The potential scope of what damages may well be recoverable is incredibly broad and is reflective of the flexibility a Court has, and in many respects needs when dealing with the issue of damages arising from such conduct.
However, the issue of how secondary victims, or “collateral victims” who fall outside of the intended scope of such harassment should be dealt with has been a complex issue, with the individual concerned often unable or struggling to find protection under the Protection from Harassment Act 1997.
With this point in mind, the case of Levi and Levi v Bates, Leeds United, Football Club Limited and Yorkshire Radio Limited [2015] EWCA Civ 206 is an exciting legal development in that it provides a strong indication from the Court of Appeal that (circumstances and facts permitting), the Courts are entitled to find that an individual who causes another psychiatric injury through an untargeted act of harassment can be liable for damage to secondary, or “collateral victims” who were not the target of their course of conduct.
The facts of Levi
The facts of the claim itself are lengthy and protracted but can be summarised as follows. Mr Levi and Mr Bates had fallen out in quite a dramatic manner regarding the running of Leeds United FC. This in turn had resulted in years of animosity and litigation between the two. Mr Bates had published articles in the Leeds United FC match-day programmes and broadcasted via Yorkshire Radio his version of his feud with Mr Levi arising out of their mutual business dealings, which manifested itself in an ugly course of conduct spanning 2005 - 2011. By the time of trial, ten publications were capable of being highlighted as offending articles against Mr Levi, and Mr Levi had already successfully sued Mr Bates previously for libel in respect of three of these publications.
In two of these publications Mr Bates had had insinuated that fans of Leeds United FC should contact Mr Levi at his home address to air any grievances they may have with the running of the club. The article was entitled “The Enemy within” in which Mr Bates wrote that the Mr Levi’s father must be “turning in his grave at his antics”. Mr Bates wrote that the actions of Mr Levi were “little short of blackmail”and that his behaviour was “totally scurrilous”. Mr Bates suggested that readers should put questions to Mr Levi to justify his behaviour and published Mr Levi’s home address where he lived with Mrs Levi.
The second article was entitled “WhyMr Levi Why ” in which Mr Bates accused Mr Levi of trying to frighten off would-be investors and trying to blackmail him personally into paying Mr Levi money. Mr Bates wrote: “Thanks Melvyn. By the way, you do know that your phone number is in the book don't you”. Mr Levis phone number appears to have then been printed, and although last sentence was blacked out in most programmes, it could still be read clearly from both the front and behind the page. Evidentially the phone number that was referred to be clearly that of both Mr and Mrs Levi.
At first instance, HHJ Gosnell sitting at Leeds County Court found Mrs Levi’s claim of harassment failed, whilst Mr Levi’s claims succeeded on the basis that the publications were not targeted against her, but at Mr Levi.
Firstly, HHJ Gosnell found that as the above cited allegations of harassment were not targeted against Mrs Levi, they could therefore not constitute or contribute towards the two acts required to give rise to a course of conduct capable of being constructed as harassment against her (as per section 7 (3) Protection from Harassment Act 1997) . Of interest with regards to the latter article, Mr Bates was asked in cross-examination why he didn’t give more consideration to the Second Claimant’s feelings and health. He replied that she didn't come into his calculations at all.
Secondly there was a finding that while the concept of “targeting”, as a necessary element in the statutory tort of harassment was not to be found expressly set out anywhere in the Protection from Harassment Act 1997, it had emerged from judicial interpretation of the statutory definition of the tort. In Thomas v News Group Newspapers Limited [2001] EWCA Civ 1233, in paragraph 30, Lord Phillips MR said that “harassment” is generally understood as describing conduct “targeted at an individual”. However, nine years later this was reiterated slightly differently in Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB), where Simon J observed that it was essential for a claim in harassment to proceed, that it be proved (inter alia) that the relevant conduct “is targeted at the Claimant”. Accordingly there was a subtle shift from being targeted specifically at a person, to having to be targeted at the Claimant in the action. The acts were not found to be “targeted” at Ms Levi and therefore her claim failed.
Re acquiring the target
The Court or Appeal acknowledged in Levi that whilst in most harassment cases the distinction of whom was targeted would not arise, infrequently it could occur that a clear course of conduct and harassment because it was targeted at C1, could cause just as much alarm and distress to C2, even though C2 was not the intended target of the perpetrator’s misconduct, although it was foreseeably likely that C2 would be harmed by it.
Briggs LJ giving the leading Judgement of the Court of Appeal at paragraph 26 of the Judgment identified that the critical question was whether in transforming Lord Phillips’ phrase in Thomas of being “targeted at an individual” to Simon J’s phrase in Dowson of being “targeted at the Claimant”, was a step too far.
Brigg’s LJ found that it was, and stated in paragraphs 27 - 29 of the Judgment that, “there are two main reasons why I consider that it is not a requirement of the statutory tort of harassment that the Claimant be the (or even a) target of the perpetrator's conduct. The first is that I do not consider that Lord Philips had that question in mind. The purpose of the passage in his judgment in the Thomas case which I have cited was not designed to identify who may complain of harassment, but rather to draw out of the well-known word ‘harassment’ the concept that it is targeted behaviour, by which I mean behaviour aimed at someone, rather than behaviour which merely causes alarm or distress without being aimed at anyone…. My second reason for concluding that, provided that it is targeted at someone, the conduct complained of need not be targeted at the Claimant, if he or she is foreseeably likely to be directly alarmed or distressed by it, is that I cannot conceive why Parliament should by implication rather than express words (for there are none) have deliberately excluded from the protection of the Act persons who are foreseeably alarmed and distressed by a course of conduct of the targeted type contemplated by the word harassment”.
However, Briggs LJ stated in paragraph 33 of the Judgment that, “Alarm or distress suffered out of nothing more than sympathy for the targeted victim of harassment is insufficient to found a claim under the Act. The Claimant must be harassed by it, in the sense that the conduct complained of must have some direct effect upon the claimant (in terms of causing foreseeable harm, usually, but not limited to, alarm and distress)”.
As a result of this analysis, on the facts of the Levi it was held that there was no reason to exclude Mrs Levi from a claim for harassment based on the above two articles. It was held that these articles constituted harassment of Mrs Levi not simply because they defamed her husband, but because they invited thousands of club supporters to intervene in a hostile manner, at her home, about a business dispute between Mr Levi and Mr Bates. In answer to submission from Mr Bates that such a finding could be contrary to Mr Bates’ article 10 ECHR right to free speech, it was expressly stated at paragraph 37 that “incitement of others to weigh in for the furtherance of a grudge about a private business dispute has nothing whatsoever to do with free speech, as the Judge rightly observed”.
It was held that the two publications taken in tandem amounted to a sufficient course of conduct. They were two separate publications, each pursuing the same objective of incitement, focussed upon the Levi family home in different ways, the first by direct visit (or perhaps letter) and the second by telephone. They shared the same essential characteristics they were closely connected. Briggs LJ found on this basis, the tort of harassment be made out against Mrs Levi, and awarded her damages in the sum of £6,000.00.
The potential fall out of Levi
Apart from the useful clarification of the application of the Protection from Harassment Act 1997 to what may be best termed “collateral victims”, there is an immediate and obvious application to a number of potential types of claim which practitioners need to be, and should be aware of.
Firstly, as in the case of Levi, actions founded either in defamation and/or the Protection from Harassment Act 1997 will inevitably attract a certain degree of animosity and ill will between the parties that can foreseeably lead to a similar situation as in Levi. It is also foreseeable that such actions could well expand to encompass multiple persons in a Claimant’s life. Considering the ongoing enquiries into the mobile telephone hacking by certain media groups (as recently demonstrated by Gulati v MGN Ltd [2015] EWHC 1482 (Ch)), it is not impossible that in phone hacking claims which are in part often based on the Protection from Harassment Act 1997, that a Claimant may seek to bring in “collateral victims” as additional Claimant’s in certain circumstances. As the reach and accessibility of the media (both regular and social) continues to grow, there is the ambit for such claims to be considered potentially on a more regular basis.
Secondly, in property disputes which are often ferociously fought with a certain degree of acrimony, and will often contain express pleaded allegations of harassment, it is not difficult to envisage for example, in a boundary dispute case, visitors to a certain address, or members of a family being exposed to untargeted harassment as in Levi. These individuals could seek remedies under the Protection from Harassment Act 1997 due to the conduct of a Defendant for a myriad of reasons despite never being the intended target of such a Defendants conduct.
Thirdly, within the context of Stress at Work claims, particularly in cases were an action is based on bullying and harassment by a Defendants employees, it is easy to envisage situations where “collateral victims” could bring claims pursuant to the Protection from Harassment Act 1997 on the basis of the ratio of Levi in circumstances where the oppressive and unreasonable conduct complained of by a Defendants employees reached a Claimant’s home, for example, the sending of hate mail or other offensive messages.
Conclusion
The impact of the Levi decision is yet to be seen, but it should in any event be seen as an indication from the Court that “collateral victims” are be able to seek remedies in damages for the harassing actions of a Defendant. They can do so safe in the knowledge that the Courts will seek to view the circumstances in which the course of conduct was perpetrated as a whole, and will look more to the result of the conduct complained of, rather than the intent of the perpetrator.
Much like how the Court may approach the civil liability of a person who carelessly throws a rock into a crowd of people aiming for a single individual and striking another, a similar approach appears to now be likely to be taken where it is conduct, rather than stones which are hurled at individuals and their families.
Liam Ryan
Ely Place Chambers
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Summary of Recent Cases, September 2015
15/09/15. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address..
Summary of Recent Cases - Costs
Ryan Kerins V Heart Of England NHS Foundation Trust CC (Birmingham) 31/07/2015
The court considered the meaning of "improper conduct" in CPR 44.11.
The claimant's (C) claim for damages for clinical negligence settled shortly after proceedings were served. The defendant (D) agreed to...
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Ignore Your Costs Budget at Your Peril! - Sharon Smith, John M Hayes
08/09/15. We suspect that there are not many who truly relish the whole notion of costs budgeting? But please fight the urge, once you have agreed your budget or had the court approve it, to bury it away in a dark cupboard and hope it will never see the light of day again!
In all seriousness, we would strenuously urge all of our clients, once a budget has been agreed/approved, to regularly refer back to it. Stick a copy to the front of the paper file as you would a legal aid funding certificate or, in the paperless era, set up a rolling diary prompt as a reminder to review the budget periodically. You need to be asking yourself at every stage, post-budget, do I have scope to be undertaking this work and/or do I have scope to incur this item of cost? If the answer is no then consideration should be given to amending the budget otherwise you run the risk of not recovering that element of the costs inter partes.
In the first instance you should submit your amended budget to...
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